Jurisdictional Statement — Mandel v. Bradley

Supreme Court brief1977

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FILED »%

JUL 29

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IN THE

Supreme Court of the United States

OcTOBER TERM, 1976

No. 76-1 28 |

GOVERNOR OF MARYLAND, ET AL.,

Appellants,

Vv.

BRUCE BRADLEY, ET AL.,

Appellees.

a ae ee

JURISDICTIONAL STATEMENT ON APPEAL

FROM A UNITED STATES DISTRICT

COURT OF THREE JUDGES FOR THE DIS-

TRICT OF MARYLAND

FRANCIS B. BURCH,

Attorney General of Maryland,

Henry R. Lorp,

Deputy Attorney General,

GeorGE A, NILSON,

Assistant Attorney General,

Ropert A. ZARNOCH,

Assistant Attorney General,

1400 One South Calvert Bldg..,

Baltimore, Md. 21202,

Attorneys for Appellants.

—— ———————— = —— ne ee -_—-——- —-

The Daily Record Co., Baltimore, Md. 21202 Re «

I LOTT SETA SO

QUBSTIONS PHRGITED ..cccccccccscvcccccccccsccccsecesccsscceee

STATEMENT OF THE CASE .....0...cccccoccssccccesecsesscccseees

THE QUESTIONS PRESENTED ARE SUBSTANTIAL

If.

IIT.

Decisions of this Court mandate that

the burden of Maryland’s uniform pre-

primary filing deadline on an independ-

ent candidate’s constitutional rights be

gauged not in isolation but in conjunc-

tion with other elements of the State’s

system of gaining access to the general

Maryland’s uniform pre-primary filing

deadline is constitutional as applied to

independent candidates whether viewed

in isolation or in the context of the

overall regulatory scheme for State

RR Raper Se Re

Although Hicks v. Miranda requires

that effect be given to a result this Court

reaches through summary affirmance,

it did not relieve the District Court of iia

obligation to distinguish and harmonize

prior summary affirmances and writtea

decisions of this Court, nor did it

suggest that summary affirmances

represent an adoption of the precise

reasoning of the lower court ..................

APPENDICES: —

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I CN icici uiciniciianacelinesiasbaipicnaat accede aati, l4a

Notice of Appeal to the Supreme Court of the

OU ical chieecilainaechaa dialed aa aitaicdaliiias l6a

Maryland Annotated Code, Article 33, §§ 7-1

pal ee EE Ee EE a RR lt SS 19a

TABLE OF AUTHORITIES

Cases

American Party of Texas v. White, 415 U.S. 767

ARTE AE Ree ees See LS, a REN 17, 21

Auerbach v. Mandel, Civil No. 72-141-N (D. Md.

March 3, 1972), aff’d 409 U.S. 808 (1972) .... 11, 16,

17, 22, 27, 28

Buckley v. Valeo, _.. U.S. ____., 46 L. Ed. 2d 659

ARE VIEL Stn ence aa OOS KTR eI ark? 13, 24, 28

Hicks v. Miranda, 422 U.S. 332 (1975) ........ 3, 11, 27, 29

Jackson v. Ogilvie, 325 F. Supp. 864 (N.D. IIL),

ae ee se I wreitceieitteencceendntecteentins 11, 22

Jenness v. Fortson, 403 U.S. 431 (1970) ...11,13,15, 17,

18, 21, 24, 25, 27, 28, 31

Maryland People’s Party v. Mandel, Civil No. 72-

86.-K (D. Md., Sept. 5, 1972), aff'd 410 U.S.

OT CII esesictaiutesiassiesihdnatnsideniedeceaeenacraladiiateeielae 11,17, 28

Pratt v. Begley, 352 F. Supp 328 (D. Ky., 1970),

aff'd 409 U.S. 943 (1970) ..........cccccssccccscssees 11, 22, 28

Reeves v. Reeves, 275 Md. 599 (1975) ...........00.. 24

Rosario v. Rockefeller, 410 U.S. 752 (1973) ........ 19

Salera v. Tucker, 399 F. Supp. 1258 (E.D. Pa.

1975), aff'd summarily sub nom., Tucker v.

Salera __. U.S. ___.,, 96 S. Ct. 1451 (1976).... 3,9,

10, 13, 15, 16, 17, 23, 27, 28, 29, 30, 31

—

‘+ PAGE

Socialist Labor Party v. Rhodes, 318 F. Supp.

1262 (S.D. Ohio 1970), aff'd sub nom.,

Sweetenham v. Gilligan, 409 U.S. 942 (1972) 11,28

Storer v. Brown, 415 U.S. 724 (1974) .......c0+ 12 13, 15,

18, 22, 27, 28, 29, 31

Williams v. Rhodes, 393 U.S. 23 (1968) ....11, 15, 16, 28

Wood v. Putterman, 316 F. Supp. 646 (D. Md.

1970), aff'd 400 U.S. 859 (1970) ...cccccceceerees 16, 28

Federal Statutes

Ble |)

OL eee

Ob i

BD CEA, BI ncastictisnintcitanstntninizssrenersensvessvencsees 27

State Statutes

Maryland Annotated Code (1976 Replacement

Volume):

Article 33—

PA 6

wm Ww Ww WH

In THE

Supreme Court of the United Siates

OcToBER TERM, 1976

No.

GOVERNOR OF MARYLAND, eT AL.,

‘ Appellants,

BRUCE BRADLEY, eT AL.,

Appellees.

JURISDICTIONAL STATEMENT ON APPEAL

FROM A UNITED STATES DISTRICT

COURT OF THREE JUDGES FOR THE DIS-

TRICT OF MARYLAND

Appellants, Marvin Mandel, Governor of Maryland,

et al., respectfully pray for either summary reversal of

the decision below or for plenary consideration of the

questions presented, with briefs on the merits and oral

argument.

OPINION BELOW

The District Court issued its opinion on May 17, 1976.

The opinion has not yet been reported but is reprinted

at pages la to 13a of the Appendix.

JURISDICTION

On April 30, 1976, Appellees filed suit in the United

States District Court for the District of Maryland,

alleging deprivation of their constitutional rights by

operation of various provisions of Maryland’s election

law. Jurisdiction was alleged under 28 U.S.C. § 1331

and 28 U.S.C. § 2201. Because an injunction was sought

against the operation of portions of Maryland statutory

law, application was made for the convening of a three-

judge district court under 28 U.S.C. § 2281. On April 30

the district judge to whom application was made

entered an order preserving the status quo, a three-

judge panel was duly convened, and on May 12

evidence was taken and argument was heard. The

Court filed its opinion on May 17 and on June 2 issued

its final order granting Appellees declaratory and

injunctive relief. (See Appendix pp. 14a-16a). Notice of

Appeal to this Court was filed on June 4, 1976 in the

District Court (See Appendix pp. 16a-19a). Jurisdiction

is conferred on this Court by 28 U.S.C. § 1253.

STATUTES INVOLVED

The principal statute involved is Maryland Code

(1976 Replacement Volume) Article 33, §7-1(e). Also

relevant are the remaining provisions of §7-1 and

certain portions of Article 33, §§4A-1, 4A-3 and 5-2.

These statutory provisions are reprinted at pp. 19a-23a

of the Appendix.

QUESTIONS PRESENTED

(1) Whether the District Court erred in examining in

isolation the deadline under Maryland law for filing

nominating petitions in a Presidential election year

(seventy days: before the primary election) without

considering the other elements of Maryland’s system of

gaining a place on the general election ballot?

(2) Whether the District Court erred in holding that

the statutory deadline, standing by itself, constitutes an

a RE

unconstitutional denial of Appellee Bradley’s right to

obtain a plece on the general election ballot and of the

other Appellees’ asserted right to have the candidate’s

name appear on that ballot?

(3) Whether the District Court erred in concluding

that the summary disposition principles articulated in

Hicks v. Miranda, 422 U.S. 332 (1975) required it to

adopt the precise reasoning of the lower court’s opinion

in Salera v. Tucker, 399 F. Supp. 1258 (E.D. Pa. 1975),

aff'd summarily sub nom., Tucker v. Salera, __ U.S.

96 S. Ct. 1451 (1976) and relieved it of its duty to

distinguish and harmonize prior summary affirmances

and written decisions of this Court?

STATEMENT OF THE CASE

With full knowledge of the strong field of party

candidates from which his likely general election

opponents were to come, Appellee Bruce Bradley, in the

spring of 1975, began to weigh the possibility of

running as an independent candidate in Maryland for

the United States Senate in 1976. In the fall of 1975

Bradley and his supporters began circulating petitions

to obtain the necessary signatures for him to appear on

the 1976 general election ballot in Maryland. Needing

51,155 signatures to qualify (3 percent of the State’s

registered voters determined as of four months before

the primary), Bradley submitted 53,239 signatures to

the local election boards for validation on Mareh 8,

1976. On the same date — the filing deadline for all

State candidates including those campaigning in the

party primaries — he filed a certificate of candidacy for

the Senate seat. This filing deadline is fixed by law at

70 days before the primary election and occurs in early

July (approximately 120 days before the general

election) in non-Presidential election years and in early

March (approximately 230 to 240 days before the

general election) in years when voters make their

nomination selections in a May Presidential Preference

Primary.

Following the normal signature verification process,

the State Administrative Board of Election Laws

notified Bradley on April 15, 1976 that his petition

papers contained only 42,049 valid signatures and were

thus insufficient to gain him a place on the general

election ballot. Signatures had been invalidated for

various reasons, many having been offered by persons

not registered to vote, or by persons who did not reside

in the county indicated on the petition sheet, or by

persons who had previously signed the petition.

On April 30 Bradley and various supporters who

alleged only their status as petition signhators or

persons desirous of having the candidate’s name on the

general election ballot filed suit in the United States

District Court for the District of Maryland. Appellees

contended that their constitutional rights had been

violated in the following respects:

|. The remoteness of the early March candidate

filing date from the date of the general election,

standing by itself, placed an “unconstitutionally

heavy burden” on Bradley’s ability to be nomi-

nated by petition in a Presidential election year

and thus restricted his First Amendment right of

political association, “unconstitutionally impacted

the Plaintiffs’ right to vote” by unduly limiting the

number of potential candidates for elective office

and violated the Equal Protection Clause of the

Fourteenth Amendment in that party primary

candidates need not comply with the petition

requirement while “independent candidates must

comply with the unnecessarily burdensome require-

ment of filing nominating petitions at a date far

removed from the date of the general election”.

2. Various provisions of Section 7-1 of Article 33

of the Maryland Code, such as the typed or printed

name requirement and the one county per petition

sheet requirement, when coupled with the alleged

lack of uniformity in county signature validation

procedures and the respective boards’ actions in

conducting their regular voter list purges and voter

registration drives “exacerbate . . . the remoteness

of the filing date from the general election” so as to

constitute a “totality of circumstances” violative of

Appellees’ rights of association and equal protec-

tion.

At the hearing before the three-judge panel, Appellees

introduced affidavit testimony designed to show that

Appellee Bradley encountered difficulties in his efforts

to appear before various organizations prior to the

filing deadline, with several indicating that he might

appear later with other candidates running in the

primary election. This testimony also pointed to the

alleged difficulties inherent in circulating petitions in

winter weather and during the Thanksgiving and

Christmas holiday seasons. Finally, Appellee Bradley’s

affidavit indicated difficulty in approaching potential

petition signers far in advance of the general election

when the issues which were then current might not be

the most important issues in November. While Appel-

lees premised their constitutional attack on the 70 day

pre-primary deadline solely on its remoteness from the

general election, virtually all of their evidence and

argument advanced before the District Court focused on

the difficulties of gathering petition signatures more

than 70 days before the primary election.

The State introduced evidence demonstrating that

while independent candidates must file their petitions

by the same early date on which all candidacies must

be perfected, they are favorab'y treated under various

other provisions of State law generally beneficial to

independent candidacies and enjoy certain inherent

practical advantages over party primary candidates.

This evidence established that:

1. Maryland law places no limit whatsoever on

the period during which signatures can be gathered

prior to the filing deadline, and an independent

candidate may gather petition signatures months

and even years before the deadline.

2. Persons signing nominating petitions for

independents may be affiliated with the major

parties and are not disqualified from voting in the

primary elections.

3. Signatures are required of only 3 percent of

the registered voters eligible to vote for that office

-- a figure substantially less than the maximum

heretofore sustained by this Court.

4. Signers do not have to state their intention to

vote for the candidate.

5. Although expenditures by and contributions

to primary campaigns for State office are subject to

State regulation, this is not the case with respect to

funds contributed or spent for nomination by

petition to State office.

6. Petitions may be circulated by non-residents

and persons not registered to vote in Maryland.

7. Because of Maryland’s liberal registration by

mail statute (Art. 33, §3-1), independents may

simultaneously approach signators and furnish

them with a registration by mail form which need

only be completed and mailed to complete registra-

tion.

In addition, Professor Richard Smolka of American

University, as a qualified expert on the law and conduct

of elections, testified that an independent candidate

seeking signatures would have an easier time gathering

signatures before the heat of the primary election

campaign, by which time many voters have crystalized

their views as to the candidates. He further testified

that unlike a primary candidate, an independent does

not have to defeat an opponent to get on the general

election ballot, usually spends less, must gather fewer

signatures than a primary candidate needs votes, and

does not have to urge frequently reluctant voters to the

polls but can obtain their “vote” on the spot. He also

noted that the petition signer is asked to take the

relatively easy step of supporting a candidate without

prejudice to his ability to vote to nominate another,

whereas the primary candidate must convince his

electorate to support him to the exclusion of his

opponents. Finally, Professor Smolka noted that

because of the large financial investment usually

required of primary candidates and the State and

federal regulation of campaign spending and contribu-

tions, primary candidates have a greater need than

independents to know the field of candidates at an early

date “in order to make intelligent decisions relative to

the solicitation of contributions and the expenditure of

monies during the primary election car.paign.” Profes-

sor Smolka’s testimony was supported by Willard A.

Morris, the State Administrator of Election Laws.

The State also established that during the last

gubernatorial election in Maryland (1974) five persons

qualified as independent candidates for the Maryland

House of Delegates and three for the State Senate via

the nomination by petition route, and that in 1976 two

persons gathered sufficient signatures by March 8 to

qualify for the general election ballot as candidates for

the United States House of Representatives.

In addition to the State interests identified through

the testimony of its witnesses, Maryland asserted as

“compelling” or sufficient numerous other justifications

for the simultaneous filing deadline for primary

candidates and independents. These included:

l. The prevention of frivolous and fraudulent

candidacies.

2. The reduction of voter confusion that intensi-

fies in a Presidential election year.

3. The establishment of a degree of parity

between independent and party candidates to

inhibit one party from promoting “independent”

candidacies to siphon off votes from the other

party’s nominee or the proliferation of “wait and

see” candidates who defer the perfection of their

candidacy and their entry into the general election

fight until the primary results are in.

4. The fostering of public discussion of cam-

paign issues among all candidates when voter

interest is at its zenith, rather than allowing

independents to maintain a low profile until the

primaries have ended.

5. The prevention of the administrative prob-

lems that might surface if the petition verification

process and likely challenges (such as this one)

were telescoped into a shorter and later period of

time.

6. The promotion of these interests while still

preserving the right of Maryland voters to be heard

at an early point in a Presidential election year as

to their choice for Presidential nominees.

On May 17, 1976, the court issued its opinion, holding

that the filing deadline of Section 7-1(e) (70 days before

the primary in a presidential election year) standing by

itself constitutes “an unconstitutional burden on Brad-

ley’s right to become an independent candidate and on

the rights of the other plaintiffs to exercise their rig‘ t to

vote” (App. p.12a) and that Appellee Bradley had

a constitutional right to collect the requisite number of

valid signatures until the date of the primary election.'

' The court strongly suggested that it felt Bradley may be

entitled to a filing date even later than the date of the

primary election (App. p. 12a). In attempting to tailor its

» * g

The court made no attempt to analyze the evidence

presented on the relative burdens of independents and

primary candidates, to weigh all of the State interests

advanced here, or to focus on the filing deadline in light

of other provisions of State law, but concluded that its

decision was controlled legally and factually by the

opinion of the three-judge district court in Salera v.

Tucker, 399 F. Supp. 1258 (E.D. Pa. 1975), aff'd sub

nom. Tucker v. Salera, 96 S. Ct. 1451 (1976).

“We do not make detailed findings of fact in the

instant case, but the evidence before us leads us

likewise to conclude that the March 8 termination

date of the signature gathering period in the 1976

general election in Maryland substantially bur-

dened the ability of Bradley to gain access to the

ballot and substantially burdened the ability of the

other plaintiffs to have Bradley as a candidate of

their choice appear on the ballot at the general

election for all of the reasons assigned by the

Salera court.” (App. p. 6a).

Even though the statute at issue in Salera, unlike the

open-ended Maryland law, allowed a scant three week

period for the gathering of signatures, even though

much of the language in the Salera opinion seemed to

indicate that the three-judge court in Pennsylvania

struck down the Pennsylvania filing deadline in

conjunction with the brief signature gathering period,

relief in this case to Bradley’s particular situation, the court

began with the May 18th date of the primary election and

gave the candidate an additional 53 days beyond that date

on the theory that he had not been “authorized” to collect

signatures from the date of his original filing on March 8th

until the entry by consent of the court’s temporary restrain-

ing order on April 30, a period of 53 days. This result

obtained notwithstanding Bradley’s testimony that he knew

on March 8 that he would fall short of the statutorily required

number of signatures and notwithstanding the undeniable

fact that he was legally free to gather signatures during the

53 day period following March 8th.

and even though the practical effect of the Salera

decision was to obliterate the three week period for the

plaintiffs in that case, the court in Bradley was

convinced that both the Pennsylvania panel and this

Court, without giving any weight to Pennsylvania’s

questionably short signature gathering period, had

struck down in isolation the filing deadline for

independents of 218 days before the general election.

The lower court here rejected the proffered compelling

interests asserted by Pennsylvania in Salera (adminis-

trative convenience, misuse of the nomination by

petition procedure by defeated primary candidates and

the promotion of intelligent voting through voter

knowledge of candidates) as if they were simply being

reasserted by Maryland. In addition, the court said that

Maryland’s simultaneous filing deadline for independ-

ents and primary candidates could not be justified on

an “equal treatment” theory:

. “Signature gathering by an independent candidate

is not the equivalent of the filing of a declaration of

candidacy by a partisan candidate; it is the

equivalent of the primary election. Maryland’s

equal treatment argument would have validity

only if the deadline for the filing of petitions was

the same date as the primary election, but it is not.

Moreover, Maryland’s professed desire to treat

partisan and independent candidates alike does

not compel fixing the cutoff date for filing the

requisite number of valid signatures 70 days before

the primary election. Quite readily, Maryland could

require independent candidates to file a declaration

of candidacy at the same time as partisan

candidates and then extend the date for the

submission of signatures to the date of the primary

election.” (App. p. 9a).

In response to the State’s argument that the constitu-

tionality of Section 7-1(e) had been sustained by recent

prior decisions of three-judge panels in Maryland,

summarily affirmed by this Court (Auerbach v. Mandel,

Civil No. 72-141-N (D. Md. March 3, 1972), aff’d 409 U.S.

808 (1972) and Maryland People’s Party v. Mandel,

Civil No. 72-865-K (D. Md. September 5, 1972), aff’d 410

U.S. 907 (1973)) and was fully supported by summary

affirmances of decisions of other jurisdictions (Socialist

Labor Party v. Rhodes, 318 F. Supp. 1262 (S.D. Ohio

1970), aff'd sub nom. Sweetenham v. Gilligan, 409 U.S.

942 (1972); Pratt v. Begley, 352 F. Supp. 328 (D. Ky.

1970), aff'd 409 U.S. 943 (1970); Jackson v. Ogilvie, 325

F. Supp. 864 (N.D. Ill.), aff'd 403 U.S. 925 (1971)), the

District Court said that language in its earlier opinions

regarding the Section 7-l(e) filing deadline, while “it

seemed to reflect the law at the time it was uttered”,

was “pure dictum”. (App. p. lla.) The lower court went

on to express its belief that while the question had been

presented in the Auerbach and Maryland People’s

Party Jurisdictional Statements and Motions to Affirm,

the Supreme Court had not yet decided the question of

the constitutionality of the Maryland filing deadline in

summarily affirming those decisions.

Finally, the District Court felt that under Hicks v.

Miranda, 422 U.S. 332 (1975) it was bound to follow its

own perception of the last summary affirmance of this

Court, despite less recent summary affirmances and

written opinions of this Court to the contrary.”

2 In addition to the cases cited, supra, the Bradley court

denigrated as “no longer the Jaw” on the constitutional

treatment of preprimary filing deadlines the written opinions

of this Court in Jenness v. Fortson, 403 U.S. 431 (1970) and

Williams v. Rhodes, 393 U.S. 23 (1968). (App. p. lla.)

THE QUESTIONS PRESENTED

ARE SUBSTANTIAL

DECISIONS OF THIS COURT MANDATE THAT THE BURDEN

OF MARYLAND'S UNIFORM PREPRIMARY FILING DEADLINE

ON AN INDEPENDENT CANDIDATE'S CONSTITUTIONAL

RIGHTS BE GAUGED NOT IN ISOLATION BUT IN CONJUNC-

TION WITH OTHER ELEMENTS OF THE STATE’S SYSTEM OF

GAINING ACCESS TO THE GENERAL ELECTION BALLOT.

Out of respect for the diversity which is the hallmark

of State election laws, this Court has always focused on

the overall statutory scheme regulating ballot access

and has eschewed any rule automatically invalidating

individual provisions of State law alleged to burden an

independent’s rights. In Storer v. Brown, 415 U.S. 724,

730 (1974) this Court said:

“It is very unlikely that all or even a large

portion of the state election laws would fail to pass

muster under our cases; and the rule fashioned by

the Court to pass on constitutional challenges to

specific provisions of election laws provides no

litmus-paper test for separating those restrictions

that are valid from those that are invidious under

the Equal Protection Clause. The rule is not self-

executing and is no substitute for the hard

judgments that must be made. Decision in this

context, as in others, is very much a ‘matter of

degree,’ very much a matter of ‘consider{ing] the

facts and circumstances behind the law, the

interests which the State claims to be protecting,

and the interests of those who are disadvantaged

by the classification.’ What the result of this

process will be in any specific case may be very

difficult to predict with great assurance.” (Cit-

ations omitted).

Similarly, this Court has said that when faced with a

challenge to restrictions on ballot access, lower courts

must inquire into the “nature, extent and likely impact”

of the requirements (/d. at 738) and that experience is

one valid guide to the extent of the burdens imposed by

a statutory scheme. Id. at 742; Jenness v. Fortson,

supra, at 439. See also Buckley v. Valeo, US. , 46

L. Ed. 2d 659, 735 (1976).

Moreover, this Court has never indicated that all

restrictions or burdens placed on the access of nonparty

_ candidates to the ballot affect constitutional rights.

Only “excessively” or “severely” burdensome require-

ments and “substantial” restrictions call constitutional

examination into play. See Storer v. Brown, supra, 415

U.S. at 729, 738. And even “substantial” restrictions on

the right to vote or to associate are not subject to

automatic invalidation. It is only when the restrictions

severely burden the right to associate for political

purposes and the right to vote effectively that discrimi-

nation against independent candidates must be justi-

fied by the showing of compelling state interests. Jd. at

729.

These pronouncements and the analytical methodo-

logy they require were totally ignored by the lower court

in its rush to read Salera as signaling a fundamental

change in this Court’s attitude toward state laws

governing minor party or independent candidacies. The

lower court’s action in striking down Maryland’s pre-

primary deadline, and in casting a dark cloud over any

petition filing deadline for independents and others

bypassing the primary elections that occurs before the

primaries, not only calls into question the laws of those

states which have pre-primary deadlines* but also

stands as a warning to those states that this alleged

’ Some of the states include: Arkansas (60 days), Georgia

(69 days), Kentucky (55 days), New Jersey (40 days), Ohio (75

days), Oklahoma (35 days), Pennsylvania (49 days), Tennes-

see (60 days), and West Virginia (31 days).

defect cannot be corrected by otherwise liberalizing the

nomination by petition mechanism. It can be remedied

only by moving back the deadline for filing petitions.

Under the lower court’s inflexible invalidation of pre-

primary deadlines, at least where they occur well in

advance of the general election, even a statutory

scheme requiring that a mere 50 signatures be gathered

to obtain general election ballot access would be

determined to be excessively burdensome if the signa-

tures must be filed by a specified date weeks or months

before the state’s primary.

The fundamental unsoundness of considering the

statutory deadline in isolation rather than as a part of

the overall scheme is highlighted by the lower court’s

fashioning of a rule which ignores the actual experience

of independent ballot access in Maryland. For example,

8 local candidates qualified as independents under

Maryland’s nomination by petition procedure in 1974

(which was the same as it is now), and 2 Congressional

candidates filed the requisite number of signatures by

the March 8 deadline in 1976. Moreover, even Appellee

Bradley filed more than the required number of

signatures by the deadline at issue in this case; and the

evidence before the lower court indicated that his

inability to qualify as a candidate was due at least as

much to his failure to conduct a sufficiently vigorous

and efficient petition campaign as it was to the March

deadline.‘

In short, this Court’s requirement that actual expe-

rience be examined in determining the burden of a

‘ For example, Bradley paid signature gatherers on a per

signature basis rather than for each valid signature and

suffered from an invalidation rate of over 20%. He did not use

the postcard-registration technique to sign up unregistered

voters. He also did not begin gathering signatures as soon as

he could have and raised and spent far less than the

principal candidates in the Democratic Primary.

ee 15

ballot access restriction was deliberately abandoned by

the lower court. See Storer v. Brown, supra, at 742;

Jenness vu. Fortson, supra, at 439.

Furthermore, following hand in hand with the lower

court’s erroneous examination of Maryland’s filing

deadline in isolation, is its creation of a rule of reverse

discrimination for ballot access cases. Independent

candidates must now be afforded advantages not

available to party candidates. And states must not

attempt, even for the ultimate benefit of the voters and

the electoral process, to place party candidates and

independents on an equal footing lest they risk a

finding of unconstitutional discrimination. In the view

of the lower court, equal treatment of all candidates, a

value expressly noted when this court sustained ballot

access restrictions in Storer v. Brown, supra, at 733,

and Jenness v. Fortson, supra, at 433-34, ceases to be

important.

II.

MARYLAND'S UNIFORM PRE-PRIMARY FILING DEADLINE

IS CONSTITUTIONAL AS APPLIED TO INDEPENDENT CANDI-

DATES WHETHER VIEWED IN ISOLATION OR IN THE CONTEXT

OF THE OVERALL REGULATORY SCHEME FOR STATE BALLOT

ACCESS

At the outset of this abbreviated discussion of the

justifications for Maryland’s uniform pre-primary filing

deadline contained in Section 7-l1(e) and of the cases of

this Court that support the statute’s constitutionality, it

is important to emphasize that Maryland does not

question the tenet that State ballot access restrictions,

including early filing deadlines, can in some cases

substantially and unconstitutionally burden the rights

of independent candidates and their voting constitu-

ency. Williams v. Rhodes, supra. Nor does the State

challenge the result reached in Tucker v. Salera,

supra, viz., that a 3-week gathering period for

signatures that ends 8 months before the general

election is unconstitutional. What the State contends is

that the Maryland filing deadline, when properly

viewed in the context of the total! regulatory scheme, is

significantly different and less burdensome than the

statute at issue in Sa/lera, and is completely justified by

interests not at stake and wot raised in the Pennsylva-

nia case.

In Wood v. Putterman, 216 F. Supp. 646, 649 (D. Md.

1970), aff'd 400 U.S. 859 (1970), Circuit Judge Harrison

Winter, speaking for two members of a three-judge

district court, contrasted the Ohio statute struck down

in Williams v. Rhodes, supra, with the Maryland

nomination by petition law anc noted that:

“7-1 permits nomination by petition signed by only

3% of the total registered voters entitled to vote for

the office for which the nomination is sought.

There are no other restrictions of any consequence,

except that no person may join in nominating more

than one nominee for each office to be filled; nor

may any person sign more than once for the same

nominee for an office.” (Emphasis added.)

In Auerbach v. Mandel, No. 72-141C (D. Md. March 3,

1972), aff'd 409 U.S. 808 (1972), Judge Winter speaking

for a unanimous three-judge court said that the Section

7-1(e) filing deadline (which occurred 2 days earlier in

1972 than in 1976) although a “heavy burden” was not

“an unreasonable time.” The court’s order in that case

expressly declared that the challenged provisions of the

State election code including the candidate filing

deadline “are not unreasonable or unconstitutionally

burdensome and are not invalid.”

5 The language of the district court’s order in Auerbach

belies the suggestion of the lower court here that Auerbach

did not decide the constitutionality of the Section 7-1(e) filing

A cursory analysis of the entire scheme for nomina-

tion by petition in Maryland demonstrates the correct-

ness of these utterances. Unlike the statute at issue in

Salera which gave a candidate and his supporters only

21 days to gather the requisite number of signatures,

Maryland has an “open” signature gathering period.

Until the deadline, candidates can spend months or

years gathering signatures. Unlike the filing deadline

in Salera, which was always fixed at approximately

seven to eight months before the general election,

Maryland’s simultaneous filing deadline for independ-

ent and party candidates occurs 120 days before the

general election in non-Presidential election years® and

239 days before the general election in a Presidential

election year only because in those years the entire

electoral process is “stepped up” and off to an early

start to give Maryland voters the opportunity to voice,

their preference in the Presidential primaries and

thereby exert some influence at the summer conven-

tions.’ In addition, Maryland’s nomination by petition

process imposes no “suffocating restrictions” upon the

free circulation of nominating petitions and in this

important respect strikingly resembles the Georgia

deadline. Moreover, an examination of the jurisdictional

statements in the Auerbach case and in Maryland People’s

Party v. Mandel, Civil No. 72-865-K (D. Md. September 5,

1972), aff'd 410 U.S. 907 (1973) discloses that this issue was

clearly presented to this Court.

6 A deadline ending 150 days before the general election

was sustained in Jenness v. Fortson, 403 U.S. 431 (1970); and

quite conceivably the 120 day provision in non-Presidential

election years can be justified on the basis of administrative

convenience alone. Cf. American Party of Texas v. White, 415

U.S. 767, 787 n. 18 (1974).

7 Indeed, in 1976 it was the Maryland Democratic Presi-

dential Preference Primary which launched California

Governor Edmund G. Brown Jr.’s national campaign for his

party’s nomination.

statutory scheme scrutinized and upheld in Jenness v.

Fortson, 403 U.S. 431, 439 (1970):

. a voter who has signed the petition of a

nonparty candidate is free thereafter to participate

in a party primary. The signer of a petition is not

required to state that he intends to vote for that

candidate at the election. A person who has

previously voted in a party primary is fully eligible

to sign a petition, and so, on the other hand is a

person who was not even registered at the time of

the previous election.”

In no way can it be said that Maryland’s statutory

scheme operates “to freeze the political status quo.” Jd.

at 438.

Appellees’ principal complaint below was not that the

entire Maryland scheme for independent ballot access

froze the political status quo, but that Maryland’s filing

deadline requires the independent candidate to make

excessively early preparations for his candidacy; to, in

effect, have finished his horserace, or at least entered

the stretch, just as the primary candidates are getting

to the starting gate. This is sheer fiction. Few, if any,

primary candidates who expect to win are just launch-

ing their campaigns on ihe filing deadline. In most

cases a primary candidate has invested a substantial

amount of time and labor prior to the filing date, and

the evidence below establishes that this was the case

with respect to the main contenders in the primary

contests for the United States Senate seat sought by

Bradley. Bradley was hardly alone among the various

candidates when he sought out the voters in late 1975

and early 1976.* In the same vein, Appellees’ contended

8 In addition, in Storer v. Brown, supra, where this Court

upheld a requirement that an independent candidate must

not have been affiliated with a political party for a year

that voters have no interest in a candidacy prior to the

March 8th filing date. This is hardly tenable in a

Presidential election year when political campaigns are

on everyone’s mind before the first snowfall in New

Hampshire. As just noted, Bradley and his rivals were

all approaching and appearing before the voters during

this “remote” period, and Bradley did get more than

50,000 sigaatures on his petitions, and two Maryland

independent candidates for the United States House of

Representatives were able to generate enough voter

interest in early 1976 to satisfy this same 3% require-

ment which Bradley fell short of. If an independent

candidate is unable to generate sufficient interest in his

campaign early in the year, he has himself to blame —

not the system or the season.

Moreover, the evidence below establishes that the pre-

primary filing deadline for independent candidates is

found to offer the independent a singular advantage in

terms of gathering petitions because he will find it

easier to collect signatures at that time. He does not

encounter the voter resistance rampant in the heat of a

primary or thereafter when voters’ views have begun to

crystalize regarding party candidates or when many

voters have been completely “turned off’ by excessive

political activity. He is given his chance at a place on

the general election ballot before the others have had a

chance to capture the loyalty and commitment of the

voters.

In many, but admittedly not all, respects the

candidate seeking to obtain signatures on a nominating

before the primary, the Court rejected this very same type of

burdensome “anticipation” argument:

“It is true that a California candidate who desires to run

for office as an independent must anticipate his candidacy

substantially in advance of his election campaign, but the

required foresight is little more than the possible 11 months

examined in Rosario [v. Rockefeller, 410 U.S. 752 (1973)] and

its direct impact is on the candidate, and not voters.” 415

U.S. at 734.

petition has an easier route to the general election

ballot than candidates who must run in primary

elections. The evidence offered by the State through

Professor Smolka and Willard A. Morris, summarized

above at pp. 5-7 establishes these advantages. First, the

independent candidate does not have to defeat any

particular opponent or opponents in order to gain a

place on the general election ballot. Secondly, the

number of signatures which he must obtain is almost

invariably less than the number of votes which a

candidate in a primary election must obtain in order to

gain his party’s nomination. Third, the independent

candidate, at least in Maryland, is given a longer period

of time in which to “campaign” for his nominating

signatures — since the candidate in a primary election

must focus his campaign during a period imme-

diately prior to an election so as to have the greatest

impact on the voters and on voter turnout, while the

independent candidate need only approach and appeal

to a particular voter at a single moment in time (the

moment when he asks for the signature) of the

candidate’s own choosing and, if rebuffed, may later

return to that same voter to try again. Fourth, the

choice made by a voter in a primary election is an

irrevocnble one in which he must choose one among

several candidates, whereas the choice made by a voter

signing a nominating petition is not irrevocable since

the voter may withdraw his signature prior to the filing

of the petition or may refuse to sign once and then sign

when later approached and may, in any event, still vote

for another candidate in his party’s primary election.

The fact that the choice is neither exclusive nor

irrevocable in the case of the signing of a nominating

petition makes it easier to persuade the voter to exercise

that choice in favor of the candidate. And finally, the

primary election candidate must get his supporters to

physically go to the polls to vote for him whereas the

petition candidate can go to the voters in their homes or

elsewhere to get their votes.°

We do not mean to suggest that it is easy for an

independent to gain a place on the general election

ballot or, as the lower court suggested we had urged,

that party and independent candidates have identical

routes to the ballot. Indeed, neither the route to the

general election ballot nor the path to ultimate victory

is easy for any candidate. However, a thorough

examination of the treatment accorded primary and

independent candidates by Maryland law and of the

problems inherent in either avenue to the general

election ballot will demonstrate that “it is problematical!

at best which [alternative] is more onerous in fact.”

American Party of Texas v. White, supra at 783 n. 16,

and that the Section 7-l(e) filing deadline is not

“excessively” burdensome.

Finally, it can hardly be contended that requiring

party primary candidates and independent candidates

to file their certificates of candidacy at the same time

constitutes discrimination such as to call into play

substantial or compelling justification for the scheme.

In numerous cases courts have pointed to this parity as

an additional reason for upholding various state

election schemes. For example, in Jenness v. Fortson,

403 U.S. 431, 433-34 (1970), this Court specifically

acknowledged the parity defense in approving the

Georgia election laws, when it stated:

“The total time allowed for circulating a nomi-

nating petition is 180 days, and it must be filed on

® In addition, Maryland law does not control or restrict

contributions or expenditures relative to the circulation of

nominating petitions but does apply to primary election

contributions and expenditures. While this distinction does

not apply to candidates for federal office (like Bradley), it is

true for all State office candidates.

the second Wednesday in June, the same deadline

that a candidate filing in a primary must meet.”

(emphasis added)

See also Storer v. Brown, supra, at 733, where the

Supreme Court noted of California’s election scheme:

“The independent candidate need not stand for

primary election but must qualify for the ballot by

demonstrating substantial public support in

another way. Otherwise, the qualifications required

of independent candidates are very similar to, or

identical with, those imposed on party candidates.”

A pre-primary filing deadline for all candidates was

also present in Jackson v. Ogilvie, 325 F. Supp. 864, 867

(N.D. Til. 1971), aff'd 403 U.S. 925 (1971), where a

challenge to Illinois’ election laws was rejected. See also

Pratt v. Begley, 352 F. Supp. 328 (1970), aff’d 409 U.S.

493 (1972) where a three-judge federal court upheld a

filing deadline for independents which « curred seven

months before the general election:

“The statute is not unconstitutionally discrimi-

natory. It does not make it any more difficult for an

independent candidate to have his name placed on

the ballot than a party candidate. The statute

simply requires all potential candidates, whether

Democrat, Republican or Independent, to file for

nomination on the same date.” 352 F. Supp. at 330.

See also Auerbach v. Mandel, supra, where the lower

court in its oral opinion noted that Maryland’s uniform

filing deadline enabled all candidates “to be known at

the same time.”

Even if the uniform filing deadline for Maryland

candidates were found to be excessively burdensome on

an independent’s rights and discriminatory in favor of

party candidates, the statute is justified by a multitude

of legitimate State interests. Of those interests proffered

by the State in support of its simultaneous filing

deadline for all candidates (see pp. 7-8 infra), most

of which were neither advanced in Salera nor treated by

the lower court here, two stand out as particularly

significant. These are the preservation of a necessarily

early Presidential preference primary for Maryland

voters and the placing of all candidates on an equal

footing.

What the lower court failed to realize is that a

Presidential election year puts greater burdens gn all

candidates than off-year elections. Although an inde-

pendent must gather and file his signatures months

before the general election, a primary victor must

stretch his budget tc similarly extend his campaign

over a period of at least 8 months before the general

election. And voters are faced with a greater prospect of

confusion as elections, both national and local, become

a year-long preoccupation. But the State quite under-

standably has determined that a May primary is

important in Presidential election years in order to give

Maryland voters a role in selecting the Presidential

candidates and to increase voter participation in the

State electoral process. The lower court’s decision

demands that the State either forgo this role for its

voters or favor independent candidates over primary

candidates by giving them a filing deadline on or after

the date of the primary elections. By allowing later

perfection of filings by independent candidates, the way

is open to engage in some of the time-honored election

tricks which invariably confuse the voters and distort

the outcome. For example, one party’s nominee might

await the outcome of the (other party’s) primary and

then determine that it would be to his advantage to

promote the candidacy by petition of a third candidate

for the purpose of artificially siphoning off votes which

would otherwise go to the other party’s nominee. This

might be accomplished either by promoting an inde-

pendent candidate with a name or political appeal

similar to the opponent. The lower court’s “alternative

means” — that the State permit an independent to file

his certificate of candidacy at the same time as primary

candidates but demand the necessary signatures on or

after the primary election — would not resolve this

problem. Unscrupulous party candidates could still

encourage the launching of numerous “protective”

petition candidates either to confuse their opponents or

to preserve their ability to siphon off the votes when the

contingency develops. Nor are such schemes in Mary-

land electoral politics merely the products of a fertile

imagination. Siphoning votes via third candidacies

is a hard reality and almost a rule of the game. See

Reeves v. Reeves, 275 Md. 599 (1975), which involved

the siphoning off of votes in a primary by a “name’s-

the-same” candidate. Furthermore, such a scheme

would impose heavy costs in terms of voter confusion

and the deferral of full political debate.”

The worst fallout from the Bradley court’s rejection of

the proffered State interest in placing all candidates as

far as possible on an equal footing'! is that primary

candidates may now have a valid claim of discrimina-

tion, a fact this court was distinctly aware of in Jenness

'° As a substantial interest, the State contended below that

§ 7-l(e) forced an independent candidate to “surface” as far

as the electorate was concerned to face the issues the prim

candidates were debating with their opponents. Althoug

“public discussion [by candidates] is a political duty”,

Buckley v. Valeo, supra, 46 L. Ed. 2d at 707, Appellee Bradley

sought to avoid this obligation during the signature gather-

ing period by instructing volunteers circulating petitions:

“Do not discuss issues.”

'! Whatever differences that can conceivably be said to

exist in the State’s treatment of independent and primary

candidates can be laid to the nature of their candidaciee and

the necessity of separating independent signature gathering

pe from a primary election campaign to avoid voter

confusion.

v. Fortson.'2 The lower court belittled the primary

candidate’s need to know the identity of the independ-

ent candidate at filing time because at that point he did

not know the identity of his general election opponent

from the opposite party. Such reasoning ignores the

fact that a primary candidate always knows that he

will have an opponent from the opposite party.

However, under the lower court’s “alternate means”, he

would not know he was to have in addition an

independent opponent until after the primary election

and possibly well into his general election campaign,

perhaps after a substantial amount of campaign funds

had already been spent or committed in different

directions.

The lower court also emphasized that an independent

candidate would not know who his opponents were

until after the primary. However, as of the filing date,

an independent does not truly know whether he

himself will qualify for the general election ballot. In

12 At 403 U.S. 440, this Court said:

“The appellants’ claim under the Equal Protection

Clause of the Fourteenth Amendment fares no better.

This claim is necessarily bottomed upon the premise that

it is inherently more burdensome for a candidate to

gather the signatures of 5% of the total eligible electorate

than it is to win the votes of a majority in a party

primary. That is a premise that cannot be uncritically

accepted. Although the number of candidates in a party

primary election for «ny particular office will, of course,

vary from election to election, the appellee’s bref advises

vs that in the inost recent election year there were 12

candidates for the :*mination for the office of Governor

in the two party ; ‘maries. Only two of these 12, of

course, won their party primaries and had their names

printed on the ballot at the general election. Surely an

argument could as well ve made on behalf of the 10 who

lost, that it is they who were denied equal protection vis-

a-vis a candidate who could have had his name printed

on the ballot simply by filing a nominating petition

signed by 5% of the total electorate.”

light of the 35-day validation process and the possibil-

ity of legal challenges to the petitions, he may not be

certain of his own status until after the primary

election. In the present case, the court’s opinion was

filed one day before the May 18 primary.

This tunnel vision of the lower court is further

evidenced by its sole focus on the respective burdens of

primary contestants and potential independent candi-

dates and its blindness to the situation of primary

victors and independents who qualify for the general

election ballot. Maryland’s 70 day pre-primary filing

deadline allows 35 days for signature validation and

another 35 days for challenges, with the result that all

general election candidates are known to each other

and the voters at approximately the same time.

However, under the lower court’s rule, primary victors

are forced to run “in a vacuum” for at least 35 days (in

the present case from May 18 to July 13 plus 35 days)

and a successful independent gets a late start in the

general election since he does not know his status until

at least 35 days after he submits his signatures (here

mid-August).

In short, instead of Maryland’s carefully-designed,

workable statutory scheme for adjusting the relative

burdens of obtaining general election ballot access, the

lower court, out of concern for excessive burdens and

discrimination, has created in Sisyphean fashion,'® a

system that unjustly discriminates against primary

candidates and imposes greater hardships on all

candidates.

'3 In ancient mythology, Sisyphus was condemned to roll a

heavy stone to the top of a hill only to see it roll back again.

T. Bullfinch, Bullfinch’s Mythology 270 (1947).

II.

ALTHOUGH HICKS v. MIRANDA REQUIRES THAT EFFECT BE

GIVEN TOC A RESULT THIS COURT REACHES THROUGH

SUMMARY AFFIRMANCE, IT DID NOT RELIEVE THE DISTRICT

COURT OF ITS OBLIGATION TO DISTINGUISH AND HARMON-

IZE PRIOR SUMMARY AFFIRMANCES AND WRITTEN DECI-

SIONS OF THIS COURT, NOR DID IT SUGGEST THAT SUMMARY

AFFIRMANCES REPRESENT AN ADOPTION OF THE PRECISE

REASONING OF THE LOWER COURT.

A fundamental issue in this case is whether lower

courts should be permitted to read the mind of this

Court in preference to its words. On two occasions the

court below opined on the effect to be given particular

summary affirmances of this Court. The three-judge

panel noted that the issue of the constitutionality of the

Section 7-l(e) filing deadline had been raised in this

Court in Auerbach but said “we do not believe that the

Supreme Court decided it”. (App. p. lla). Yet, despite

the fact that the issue as framed for this Court in Salera

wove together the constitutionality of both the signa-

ture gathering period and filing deadline for independ-

ent candidates in Pennsylvania,'‘ the lower court here

said “we are confident that Salera did decide the issue

before us”, (App. p. 8a.) viz., the validity vel non only of

a pre-primary filing deadline. Absent in the court’s

opinion was any attempt to employ the methodology of

Storer and Jenness or any serious attempt to distin-

guish the substantial amount of authority in support of

a According to Pennsylvanie’s Jurisdictional Statement in

Salera, the relevant question was framed: “Whether the

United States District Court for the Eastern District of

Pennsylvania, sitting as a three-judge court pursuant to 28

U.S.C. §2284, committed error in ruling that, under the

Pennsylvania Election Code, the requirement that candidates

of political bodies collect signatures for their nomination

papers between the tenth and seventh Wednesdays prior to

the primary election, and file such nomination papers no

later than the seventh Wednesday prior to the primary

election, violated a constitutional right secured by the United

States Constitution.” (Emphasis added)

the constitutionality of Section 7-1(e). In effect, the

lower court declared that the summary affirmance in

Salera had overruled the following written and sum-

mary decisions of this Court: Socialist Labor Party v.

Rhodes, 318 F. Supp. 1262 (S.D. Ohio 1970), aff’d sub

nom. Sweetenham uv. Gilligan, 409 U.S. 942 (1972)

(upholding a filing deadline of 90 days before the

primary and 9 months before the general election);

Pratt v. Begley, 352 F. Supp. 328 (D. Ky. 1970), aff’d 409

U.S. 943 (1972) (upholding a filing deadline of 55 days

before the primary and 7 months before the general

election); Jenness v. Fortson, 403 U.S. 431 (1970)

(upholding a filing deadline of 69 days before the

primary and 5 months before the general election even

though this provision was coupled with a 180-day

signature-gathering period and a 5% signature require-

ment); and Williams v. Rhodes, 393 U.S. 23 (1968)

(where the filing deadline later sustained in Sweeten-

ham was struck down but only in conjunction with

restrictive provisions of Ohio law which made it

virtually impossible for a nonparty candidate to obtain

ballot aecess).'® Apparently of little concern to the panel

below during this devastation of this Court’s ballot

access cases was the fact that less than two months

before the Salera affirmance Jenness was relied upon

by this Court to sustain the constitutionality of certain

provisions of the Federal Election Campaign Act in

Buckley v. Valeo, supra, at 733-36, or that the Auerbach

and Wood cases were cited favorably in Storer, supra, at

739, n. 10 when this Court last gave plenary considera-

tion to a ballot access case.

‘5 In addition, the lower court laid waste to Auerbach,

Maryland People’s Party and Wood v. Putterman, the three

cases between 1970 and 1973 in which this Court gave

summary, favorable consideration to the constitutionality of

Maryland’s nomination by petition process (which has not

since changed).

The lower court cited Hicks v. Miranda, 422 U.S. 332

(1975), as authority for its cut of hand dismissal of the

precedential value of the above decisions. However,

Hicks v. Miranda stands only for the unchallenged

propositions that a summary affirmance by the

Supreme Court is a decision on the merits in a case and

that lower courts are not free to disregard such

decisions. 't does not elevate the lower court opinion to

equal footing with the words of this Court, nor does

Hicks v. Miranda prescribe the weight to be given the

lower court’s reasoning in light of a summary affir-

mance that follows hard on the heels of a line of written

and summary decisions which suggest or mandate a

result contrary to that reasoning but consistent with

the result in the case.'* In light of the seriousness with

which this Court regards the prospect of overruling a

prior decision, lower courts should have a similarly

weighty obligation to reconcile a single summary

affirmance with other Supreme Court decisions of

recent vintage by employing the methodology set out in

this Court’s written decisions.'’ Any other course might

'6 As noted earlier, we have no quarrel whatever with the

result of striking down a three-week signature-gathering

period which ends as early as was the case in Salera.

‘7 The lower court here avoided numerous opportunities to

distinguish Salera from the present case. First and foremost

was the requirement of the Pennsylvania statute that

signatures be gathered within 21 days. The three-judge court

for the District of Maryland, like the lower court in Salera,

was all too quick to eo such a feature as per se

unburdensome under all circumstances, a course which this

Court eschewed in Storer, 415 U.S. at 740. In Storer this

Court deemed a 24-day period to gather signatures for an

independent Presidential candidate as “a substantial require-

ment” and remanded the case for a determination of whether

this provision coupled with other restrictive features of

California law placed too great a burden on independent

candidates. As a practical matter, the absence of such a

substantial restriction from Maryland’s nomination by

invite lower court judges to decide cases on the basis of

their predilections and might deter this Court, out of an

abundance of caution, from making as frequent use of

the necessary technique of summary disposition of

cases. Indeed, a summary affirmance here would

simply invite the kind of bad guesswork and refusal to

reasonably reconcile recent decisions of this Court

which characterized the opinion of the lower court here

and its blind adherence to its own perception of the

import of Salera.

A summary affirmance in this case would encourage

lower courts to rummage through often sloppily

prepared jurisdictional statements to decipher this

Court’s thinking rather than to read its written

opinions and apply their methodology. Finally, a

petition law renders the scheme challenged by Bradley

infinitely less burdensome than the Pennsylvania statute.

Moreover, even the lower court’s opinion contained repeated

references to the unconstitutional remoteness from the

general election of the “signature gathering period”. 399 F.

Supp. at 1266-67. Salera is also distinguishable in a number

of other important respects. It involved a 218day period

before the general election in a non-Presidential election year.

In such cases, Maryland requires only a 120-day period.

Moreover, the element of the Presidential preference primary

present in this case necessarily strengthens the legitimate

state interests so summarily rejected in Salera. This case also

involves substantial interests not presented or discussed in

Salera, but considered substantial by this Court in prior

cases. In addition, Salera is distinguishable on the basis of

facts the three-judge court in Pennsylvania thought impor-

tant, viz., the status of the parties. In Salera the statute was

challenged by a class who expressed its intention to vote for

the candidate. 399 F. Supp. at 1262 N. 4. In the present case

the only intent averred by Bradley’s supporters is their desire

to see his name on the general election ballot. Finally, the

Salera court even determined that the bad weather petition

circulators must face when gathering signatures at an early

date was important in gauging burdensomeness. 399 F. Supp.

at 1266. Evidence before the Bradley court here indicated that

in 1975-76 Maryland had one of its mildest winters in history.

summary affirmance in this case would sanction the

District Court’s “divide and conquer” methodology and

lead lower courts to strike down other specific state

election provisions (such as the one in this case)

heretofore upheld by this Court in assessing total

statutory schemes for ballot access.

CONCLUSION

In summary, Appellants urge that the District Court

has abdicated its duty to reconcile Salera with other

decisions of this Court, to employ the methodology set

out in Storer and Jenness, and to gauge the impact of

Maryland’s candidate filing date in light of other

features of the State’s election law and the realities of

independent ballot access in Maryland. For these

reasons, the State contends that the lower court abused

its discretion in enjoining State election officials from

refusing to accept additional signatures submitted by

Appellees after the statutory “eadline.

The foregoing plainly demonstrates that this Court

has jurisdiction of the appeal and that the questions

presented are substantial.

Respectfully submitted,

FRANCIS B. BurRcH,

Attorney General of Maryland,

HENRY R. Lorp,

Deputy Attorney General,

GeorGE A. NILSON,

Assistant Attorney General,

RoBERT A. ZARNOCH,

Assistant Attorney General,

1400 One South Calvert Bldg.,

Baltimore, Md. 21202,

Attorneys for Appellants.

ee ee)

APPENDIX

In the United States District Court

for the District of Maryland

Civil Action

T 76-638

Bruce Bradley, John F. Falconer,

John McGrath, Gloria Fazio,

Paul Poff,

Plaintiffs,

Honorable Marvin Mandel, Francis B. Burch, Attorney

General, Willard A. Morris, Administrator, State

Administrative Board of Election Laws, Reginald A.

Asplen, Chairman, State Administrative Board of

Election Laws, Theodore N. Clark, Vice Chairman,

State Administrative Board of Election Laws, Ann

Schissler, State Administrative Board of Election

Laws, James W. Johnson, Jr., State Administrative

Board of Election Laws, Stephen R. Fegan, State

Administrative Board of Election Laws,

Defendants.

Jon T. Brown, Esquire, James D. Pembroke, Esquire,

and Duncan, Brown, Weinberg & Palmer, Attorneys for

Plaintiff; Francis B. Burch, Esquire, Attorney General

for the State of Maryland, Robert A. Zarnoch, Esquire,

George Nilson, Esquire, Assistant Attorneys General

for the State of Maryland, Attorneys for Defendants.

Before Winter, Circuit Judge, Thomsen, Senior

District Judge, and Kaufman, District Judge.

Argued May 12, 1976 Decided

WINTER, Circuit Judge:

Maryland permits the selection of candidates at a

general election for statewide and federal offices by

either of two methods: by primary elections by political

parties whose status as political parties has been

theretofore established, and by nominating petition. § 4-

1.! Primary elections are fixed by Maryland law to be

held on the second Tuesday after the first Monday in

September in any year in which there shall not be an

election for President and Vice President. In any year

in which there shall be an election for President and

Vice President, the primary election shall be held on the

third Tuesday in May. §5-2. When a candidate who is

registered as an independent, or who is a member of or

affiliated with a partisan organization which is not a

political party or is not a member of a political party

whose nominees must be nominated by primary

election, seeks nomination by petition, he is required to

file a certificate of candidacy together with nominating

petitions signed by not less than three percent of the

registered voters who are eligible to vote for the office

for which he seeks nomination. §7-1. His nominating

petitions must be delivered to the Boards of Elections

Supervisors for the counties, or Baltimore City, in

which the signers on the paper are alleged to reside

“not later than 9:00 p.m. on the Monday which is ten

weeks or seventy days before the day on which the

primary election should be held under the primary

election law... .” §7-1(e). A person seeking a nomina-

tion in a primary election is similarly required to file a

certificate of candidacy for nomination “not later than

nine p.m. on the Monday which is ten weeks or seventy

days before the day on which the primary election shall

be held under the primary election law,” § 4A-3, but he

may withdraw his candidacy up to 45 days before the

primary. § 9-1.

i The Maryland election laws are codified in Art. 33, 3B

Ann. Code of Md. (1976). All section references made herein

will be to Art. 33 unless otherwise indicated.

Ct Arete . "

The net effect of these provisions in the 1976

presidential election year is that candidates for nomina-

tion, whether by the primary election route or by the

petition route, must have filed their certificates of

candidacy by March 8, 1976. A candidate seeking

nomination by the petition route must have also filed

nominating petitions containing the requisite number

of signatures by March 8, 1976. A candidate by the

primary route had the right to withdraw his certificate

of candidacy until April 2, 1976. The primary election

will be held on May 18, 1976, and the general election

7 be held on November 2, 1976. Md. Const. Art. XV

Plaintiff Bruce Bradley is an independent candidate

for the United States Senate from the State of

Maryland. The remaining plaintiffs are citizens of and

registered voters in the State of Maryland who wish to

have the name of Bruce Bradley placed upon the ballot

for the Maryland general election to be held November

2, 1976. Defendants are various election officials of the

State of Maryland. The facts which give rise to this

litigation follow:

On March 8, 1976, Bradley filed nominating petitions

with twenty-one county election boards in the State of

Maryland, including the City of Baltimore. The peti-

tions were accompanied by 53,239 signatures of

purported citizens of the state. Based upon the number

of voters eligible to vote in the general election, 51,155

valid signatures were required to effect a nomination by

petition.?

Subsequent to the filing of the petitions and signa-

tures. the State Administrative Board of Election Laws

determined that only 42,049 signatures, valid under the

2 The “validity” of signatures is governed by other

provisions of § 7-1. The various requirements are that they be

of persons registered to vote, that only signatures of persons

registered in the same jurisdiction appear on the same page,

that a signer’s residence be appended, that the name of a

signer be printed immediately below his signature, etc.

numerous requirements of §7-1, had been filed by

Bradley and that this number was insufficient to

qualify him to appear on the ballot for the general

election in November 1976.

Bradley ceased soliciting signatures on nominating

petitions after March 8, 1976. He filed this complaint on

April 30, seeking declaratory and injunctive relief on

the two principal grounds that (1) the provision of the

Maryland law requiring him to file the requisite number

of valid signatures to support his certificate of candi-

dacy by March 8, 1976, was invalid because of its

remoteness from the general election to be held

November 2, 1976 — his claim being that the provision

constitutes a violation of the first and fourteenth

amendments because it places an unreasonably heavy

burden on Bradley to have his named placed on the

ballot, and restricts the rights of the remaining

plaintiffs to associate freely for the purpose of express-

ing constitutionally protected political beliefs and to

exercise their right to vote, and also that it denies equal

protection of the laws because the unnecessarily

burdensome requirements of filing nominating petitions

at a date far removed from the date of the general

election is not applicable to major party candidates —

and (2) that the provisions of the Maryland election

laws relating to the form and procedure for obtaining

“valid” signatures to the nominating petition on their

- face and as applied deny all of the plaintiffs their first

and fourteenth amendment rights by placing an undue

burden on Bradley’s right to have his name placed on

the ballot and thereby restrict the rights of the

remaining plaintiffs to associate freely for the purpose

of expressing protected political beliefs and exercising

their right to vote.

On April 30, the district judge to whom application

was made entered an order, with the consent of all

parties, permitting Bradley to solicit additional signa-

tures to support his certificate of candidacy and to file

the same with defendants until May 18, 1976, but not

requiri 1g defendants to take any action thereon until

further order of the court. A three-judge court was duly

convened, evidence taken and argument heard, and the

case submitted to the court on its merits, including

plaintiffs’ motion for a preliminary and permanent

injunction and declaratory relief, defendants’ motion to

dismiss, and defendants’ motion for summary judg-

ment. At the hearing, defendants’ motion to dissolve

the three-judge court was summarily denied since the

court thought that a substantial question of the validity

of a statewide provision of the Maryland ’

had been raised. aryland election law

IT.

We address ourselves solely to plaintiffs’ claim that

the provision of §7-1(e) requiring the filing of signa-

tures by March 8, 1976 is invalid, because we think this

question is determinative of the case. Salera v. Tucker,

399 FS. 1258 (E.D. Pa. 1975), aff'd summarily sub nom.

Tucker v. Salera, _.. U.S. __ 44 U.S.L.W. 3526

(March 22, 1976), is the controlling authority, and we

— that it requires that plaintiffs be granted

relief.

Salera was a decision by a three-judge court which

considered two aspects of Pennsylvania’s election law

with regard to nominating petitions. The Pennsylvania

statute, unlike the Maryland statute, imposed a three-

week limitation on gathering signatures for nominating

petitions and, much like the Maryland statute, required

that the signatures supporting a nominating petition be

filed not later than 218 days before the general election

in a year in which a President and Vice President

would not be elected, and 244 days in a presidential

election year.

The validity of the statute was attacked on the

grounds that (1) the three-week limitation on gathering

signatures was an unconstitutional burden on access to

the ballot, and (2) the remoteness of the signature

gathering period from the general election unconstitu-

tionally impaired the ability of the candidate to qualify

3 In Maryland, in 1976, the signatures were uired to be

gathered and filed 239 days before the guneell Geeta.

as an eligible independent candidate. The three-judge

court considered these claims separately. With respect

to the first, it held, on the autnority of Storer v. Brown,

415 U.S. 724 (1974), that “the three week period is

constitutional as applied to plaintiffs.” 399 F.S. at 1265.

The court held the statute invalid, however, on the basis

of plaintiffs’ second attack, and its reasoning in this

regard warrants closer analysis.

With respect to the claim of remoteness, the court

found that the termination of signature gathering 218

days before the general election in a non-presidential

election year substantially burdened the ability of

independent candidates to gain access to the ballot

because it forced them to gather signatures before the

issues of the upcoming election had been defined, it

forced them to complete the signature gathering process

in a political vacuum seven weeks before the major

parties choose their candidates, it made the task of

generating interest among potential voters more diffi-

cult than it would be if the signature gathering period

were scheduled at a point closer to the general election,

and it required that signature gathering be conducted

during a time of the year of prevailing adverse weather

conditions — another species of burden. 399 F.S. at

1266. We do not make detailed findings of fact in the

instant case, but the evidence before us leads us

likewise to conclude that the March 8 termination date

of the signature gathering period in the 1976 general

election in Maryland substantially burdened the ability

of Bradiey to gain access to the ballot and substantially

burdened the ability of the other plaintiffs to have

Bradley as a candidate of their choice appear on the

ballot at the general election for all of the reasons

assigned by the Salera court.

After finding the facts, the Salera court considered

the argument that three state interests arguably were

served by holding the nomination paper circulation

period as far in advance of the general election as did

Pennsylvania. The first, which was rejected, was to

provide sufficient time to resolve challenges to the

nomination papers and to prepare the ballots in a

Ter. 2

ee eee eT de

tt et a re ee ee ee ee ee ee

deliberate and orderly fashion. Under the evidence. th

Salera court found that Pennsylvania needed ne tees

time to accomplish these purposes than that which was

established under the Pennsylvania statute. 399 FS. at

1267. The same is true in Maryland. Under Maryland

law as applied in 1976, the validity of a nominating

petition was required to be determined by April 12, “five

weeks or thirty-five days before the day on which the

primary election should be held under the primary

election law,” §7-l(e), and the certification of candi-

dates whose names will appear on the ballot of the

general election is not required to be made to the local

Boards of Election Supervisors until August 28, 1976,

[n jot less than sixty-five days before a general election

at which the voters elect the President of the United

States ves y § 8-4. In the instant case, the validity of

Bradley’s nominating petition was determined by April

i2. Presumably a period equal to the time elapsed

between March 8 and April 12 (thirty-five days) would

be sufficient even if the ascertainment of validity were

not undertaken until a later date. The date for

certification of candidates is sufticiently removed that

validation of the nominating petition could j

at a later date. ae a

Next, the Salera court considered the state’s con

that defeated or disaffected primary candidates oyna

the independent nomination process to thwart the will

of the party majority or to wreak vegeance upon the

candidate chosen by the party majority. The court

concluded that Pennsylvania had accomplished this

purpose in other ways. So has Maryland, because

Maryland prohibits any person who has been defeated

for the nomination for any office in a primary election

from having his name printed on the ballot at the

succeeding genera! election as a candidate for any

office, § 8-2, and limits nomination by petition to

candidates who are registered as independents, or who

are members of or affiliated with a partisan organiza-

tion which is not a political party or who are not

members of a political party whose nominees must be

nominated by means of primary elections. § 7-1(a).

ssible state interest which was considered

-. y wep ne interest in the intelligent exercise of the

franchise by those voting in the primary, 1e., — a

voter in a primary can cast his vote more knowl So

bly and effectively if he knows which indepen _

candidates will or will not be on the final ballot. The

court rejected this as a validating interest because .

primary voter would “not know the identity of a _

more significant factor in the general election, 3" e

identity of the other major party candidate. 399 FS. at

1268. We find this reasoning equally applicable in

Maryland.

inding no validating state interest to justify the

ameaie of the cutoff date:for garnering supporting

signatures for the general election, and the resulting

burden on the candidate seeking nomination, the court

concluded that the cutoff date was invalid.

The Commonwealth of Pennsy!vania, through its

appropriate officials, appealed to the Supreme Court,

and the decision of the three-judge district court -

summarily affirmed. We have been furnished with -

Commonwealth’s jurisdictional statement and the

plaintiffs’ motions to affirm. We are advised that the

Commonwealth filed no response to the motions

affirm. The plaintiffs took no cross-appeal, and we =

it significant that in urging summary affirmance the

plaintiffs, on the merits, urged that the district —

correctly concluded that the remoteness of the cuto

period from the general election was invalid. Plaintiffs

did not argue that the shortness of the period for

gathering signatures, either alone or in combination

with the remoteness of the cutoff period, supported the

result.

r Hicks v. Miranda, 422 U.S. 332 (1975), we are

as the summary affirmance in Salera, if it can be

fairly said that Salera decides the issue before us and is

not distinguishable on any other ground. From -

recitation of what was decided in Salera and the

proceedings in the Supreme Court, we are confident

that Salera did decide the issue before us. We reject

defendants’ argument that the shortness of the signa-

te Nae tt

ture gathering period under Pennsylvania law contrib-

uted to the decision of the district court ur the Supreme

Court. We think that all that these two courts decided

was that the remoteness of the cutoff date of the

signature gathering period from the general election

constituted an impermissible burden on the Pennsylva-

nia candidates’ access to the ballot and the other

plaintiffs’ right to vote.

We therefore turn to the question of whether Salera is

distinguishable from the instant case:

Maryland urges that there is present in this case a

validating compelling state interest not considered in

Salera, i.e., the desirability of treating partisan and

independent candidates alike by requiring all candi-

dates to file on the same date. Thie argument does not

persuade us. Partisan and independent candidates are

not treated alike under Maryland law, nor do we think

that Maryland has drawn a close analogy between

them. Signature gathering by an independent candi-

date is not the equivalent of the filing of a declaration

of candidacy by a partisan candidate; it is the

equivalent of the primary election. Maryland’s equal

treatment argument would have validity only if the

deadline for the filing of petitions was the same date as

the primary election, but it is not. Moreover, Maryland’s

professed desire to treat partisan and independent

candidates alike does not compel fixing the cutoff date

for filing the requisite number of valid signatures 70

days before the primary election. Quite readily, Mary-

land could require independent candidates to file a

declaration of candidacy at the same time as partisan

candidates and then extend the date for the submission

of signatures to the date of the primary election. In

summary, we think that an “equal treatment” rationale

is faulty and the attempt to distinguish Salera on this

ground fails.

Maryland next argues that Salera should not be

given the construction that we place upon it because a

consequence would be that our decision in Auerbach v.

Mandel, Civil No. 72-141-N, and Barnhart v. Mandel,

10a

Civil No. 72-142-N (D. Md. March 3, 1972), affd

summarily, 409 U.S. 808 (1972), and Maryland People’s

Party v. Mandel, Civil No. 72-865-K (D. Md. September

5, 1972), aff'd summarily, 410 U.S. 901 (1973), would be

overruled, and it cannot lightly be supposed that in

affirming summarily in Salera the Supreme Court

intended to overrule Auerbach, Barnhart, and People’s

Party sub silentio. We do not agree that the question

presented in the instant case was decided in either

Auerbach, Barnhart, or People’s Party, although we

recognize that a dictum in Auerbach may have

indicated a contrary view from that which we take now.

In Auerbach, Barnhart, and People’s Party, we were

presented with the question of how a new political party

could nominate a candidate. There the claim was made

that a new political party could nominate a candidate

only by qualifying as a “political party” and that it was

an impossibility for a new political party thus to qualify

with the result that its candidates were barred from the

ballot. People’s Party was decided upon the authority of

Auerbach; Barnhart was decided on the ground of

laches. In Auerbach, we decided that, on the basis of

statutory construction, §7-1(a) permitted a candidate

for public office, who is a member of a partisan

organization which is not a political party, to be

nominated by petition. We specified that we decided the

case “as a matter of statutory construction,” and we

added, “it seems to us that there is no constitutional

question which the suit of the People’s Party raises, and

as a consequence, we find no basis for giving relief.

_. .” True, in practical recognition that we decided the

case on March 3, 1972, and March 6, 1972 was the cutoff

date under Maryland law for the filing of a petition of

candidacy and the obtention of the signatures neces-

sary to make that petition effective, we added:

We recognize that this is a heavy burden to be

met if somebody is to run. We can only say this,

that viewed in the perspective of its reasons, March

6th in itself is not an unreasonable time when you

consider the need and the State’s legitimate

interest in closing the registration books in

roe ee ea an

lla

advance of an election and requiring also tha

candidates, whether they ~ pens Ser ~ -

primary election for one of the major parties or

candidates for a party not having the right to

resort to nomination by primary or a candidate of

a partisan organization which is not a political

party, to be known all at the same time.

With respect to the language just quoted, we rei

that it was pure dictum.‘ While it scemeed to sailost the

law at the time it was uttered,5> we are not now

persuaded of its correctness, factually or legally.

Factually, further examination of the Maryland sta-

tutes and the decision of the district court in Salera

persuades us that the Maryland filing date requirement

does not permit all candidates to know all of their

opponents at the same time. A primary candidate of a

major political party does not know the nominee of an

opposing political party—usually the most significant

information to be considered by the candidate in

concluding whether to run. Nor does a candidate

necessarily know his opponents in the primary election

in which he seeks to run at the time that he files his

* An examination of the jurisdictional statement, motion to

affirm and response thereto, filed in the Supreme Court in

Auerbach and Barnhart, discloses that the plaintiffs did seek

to reise in the Supreme Court the question of the invalidity of

the remoteness of the filing date for a petition of candidacy

from the general election as a ground for reversal. But since

that issue had not been fully litigated before us, we do not

believe that the Supreme Court decided it.

° See Socialist Labor Party v. Rhodes, 318 F.S. 1262, 1

(S.D. Ohio 1970) (three-judge court), aff'd sub nom. —

ham v. Gilligan, 409 U.S. 942 (1972) (deadline 9 months

before general election upheld); Pratt v. Begley, 352 F.S. 328

330 (D.Ky. 1970) (three-judge court), aff'd 409 U.S. 943 (1972)

(deadline 7 months before general election upheld); Jackson

v. Ogilvie, 325 F.S. 864, 867 (N.D. Ill.) (three-judge court)

(deadline 60 days before general election upheld), aff'd 403

U.S. 925 (1971); Jenness v. Fortson, 403 U.S. 431, 434-35

(1970) (deadline 150 days before general election upheld); cf.

Williams v. Rhodes, 393 U.S. 23, 27 (1968) (deadline 270 days

before general election, in combination with other restrictive

provisions, struck down).

12a

certificate of candidacy. Certificates many times are not

filed until the last hour of the filing period with the

result that knowledge of the identity of his opponent is

lacking, and even if known it may be gained too late to

make a considered judgment of whether to run. Even if

the identity of his opponent is known in time for

reflection upon the question of whether to file, under

Maryland law that opponent may withdraw before the

actual primary election. Again, to the extent that

dissemination of knowledge to all is a valid state

interest, it could be accomplished in the case of an

independent candidate by having him file a certificate

of candidacy without requiring him to complete the

obtention of the requisite valid signatures seven weeks

before the date of the primary election.

Legally, for the reasons we have stated, we think that

Salera decides the issue before us, and as the latest

expression of the Supreme Court, we are bound to follow

it.

Il.

For the reasons set forth above, we conclude that

plaintiffs should be given declaratory and injunctive

relief. A declaration will be granted that the time

limitation of §7-1(e) that nominating petitions shall be

completed and filed 70 days before the date on which

the Maryland 1976 presidential primary election shall

be held constitutes an unconstitutional burden on

Bradley’s right to become an independent candidate

and on the rights of the other plaintiffs to exercise their

franchise to vote.

We formulate injunctive relief as follows: We have

indicated that we think that constitutionally Bradley at

least should have had the right to collect the requisite

number of valid signatures until the date of the primary

election. The evidence and Maryland’s schedule of

certification dates establish, however, that administra-

6 From the evidence before us and the time schedule for

certification of primaries set forth in the Maryland statute,

Bradley may be entitled to more, but that case is not before

us and we do not decide it.

he Ee a ae

A I ed Oe

l3a

tively it would be feasible for Maryland to afford

Bradley a period well beyond that date to complete the

signature gathering process.

Bradley was not authorized to gather supporting

signatures for the period March 9 to April 30, 1976,

when the court ordered that the enforcement of § 7-1(e)

be suspended in part. This period comprised 53 days.

We therefore conclude that Bradley should be given 53

days after the date of the May 18 primary election to

collect and file with defendants additional signatures to

support his petition of candidacy, i.e. to the close of

business on Saturday, July 10, 1976, or, if that is treated

as a holiday, to the close of the next succeeding

business day. Thereafter defendants should determine

the validity of the same in accordance with the

applicable provisions of Maryland law, and if Bradley

has obtained and produced a total of 51,155 valid

signatures, including those filed on March 8, 1976.

defendants shall treat him as properly nominated by

petition and certify him as a candidate to appear on the

ballot in the general election in accordance with the

other applicable provisions of the Maryland statute.

Counsel are requested to agree on a form of final

order and present the same within ten days.

HARRISON L. WINTER,

United States Circuit Judge,

Rosze. C. THOMSEN,

Senior United States

District Judge,

FRANK A. KAUFMAN,

United States District Judge.

l4a

ORDER

In The United States District Court

For The District of Maryland

Civil Action No. T-76-638

Bradley, et al.,

i ae Plaintiffs,

Vv.

in Mandel, et al.,

alin Defendants.

This cause came on to be heard on plaintiffs’ Motion

for Temporary Restraining Order, Preliminary Injunc-

tion, and Declaratory Relief. It was stipulated that the

evidentiary hearing conducted before this court on the

Motion for Preliminary Injunction would constitute the

trial on the merits of this cause and that further

evidentiary proceedings before this court would not be

required. The court having considered the complaint,

the motion, the memorandum and affidavits submitted

in support thereof, and the opposition thereto; and

having taken evidence and heard oral argument

thereon by counsel; and it being determined for reasons

stated in the court’s written opinion filed May 17, 1976,

that Plaintiffs are being deprived of their constitutional

rights and will suffer immediate and irreparable injury

by the operation of Section 7-l(e) of Article 33 of the

Annotated Code of Maryland (1976 Replacement

Volume) insofar as that provision requires an independ-

ent candidate to file nominating petitions containing

the requisite number of signatures by March 8, in the

1976 presidential election year; and the court having

made its findings of facts and conclusions of law, it is

DECLARED that §7-1(e) of Article 33 of the Anno-

tated Code of Maryland (1976 Replacement Volume),

lal

i ee ee eT ee eee ere ee oe

l5a

insofar as that provision requires an independent

candidate to file nominating petitions containing the

requisite number of signatures by March 8 in the 1976

presidential election year, denies the constitutional

rights of Bruce Bradley to obtain a place on the ballot for

the general election to be held in a a tg 1976, and

the other plaintiffs to cast a vote for Bruce Bradley at

said general election as the candidate of their choice;

and it is

ORDERED, that defendants, their agents, servants,

employees, and attorneys and all persons in active

concert and participation with them be and they are

hereby permanently restrained and enjoined from

1. Refusing to accept additional nominating

petitions and signatures affixed thereto sub-

mitted on or before 5:00 p.m. July 13, 1976, on

behalf of plaintiff Bradley;

2. Refusing to validate or cause to be validated,

in accordance with the applicable provisions of

Section 7-l(e) of Article 33, the additional

nominating petitions and valid signatures

affixed thereto submitted on behalf of plaintiff

Bradley no later than five weeks or thirty-five

days after July 13, 1976, or such earlier date as

plaintiff Bradley certifies that he has filed all

the additional signatures which he proposes to

file;

3. Refusing to determine and declare as reqvived

by law promptly following such validation of

nominating petitions and signatures affixed

thereto whether the name of plaintiff Bradley

will be placed on the ballot for the office of

United States Senator in the general election

to be held in Maryland in November 1976; and

from

4. Refusing to place the name of plaintiff Bradley

on the ballot for the office of United States

Senator in the general election to be held in

Maryland in November 1976 if it has been

16a

ined that he has obtained 9,106 valid

pe in addition to those filed hy March

8, 1976 and previously validated.

ISON L. WINTER,

ealed States Circuit Judge,

RoszeEL C. THOMSEN,

Senior United States

District Judge,

FRANK A. KAUFMAN,

United States District Judge.

OF APPEAL TO THE SUPREME COUR

ore OF THE UNITED STATES

In The United States District Court

For The District of Maryland

———<———

Civil Action No. T-76-638

—

dley, et al.,

Bruce Bradley, e Plaintiffs,

; - l, et al.,

Marvin Mandel, e ae ee

os 1 this

- Notice is hereby given that all Defendants in t

oaies hereby appeal to the Supreme Court of =

United States from the final Order sony od ™

action on June 2, 1976, declaring the filing deadline -!

nominating petitions set forth in Section ey

Article 33 of the Annotated Code of Marylan f we

Replacement Volume) to be an unconstitutional *

of Plaintiff Bradley’s right to obtain a place 7 §

general election ballot and the other Plaintiffs’ mght

17a

vote for said candidate, and permanently enjoining

Defendants from refusing to accept and validate

additional signatures and nominating petitions gath-

ered by Plaintiffs before July 13, 1976, a new dead-

line fashioned by the court for the Plaintiff Bradley.

This appeal is taken pursuant to 28 U.S.C. § 1253.

II. The Clerk will please prepare a transcript of the

record in this cause for transmission to the Clerk of the

Supreme Court of the United States, and include in said

transcript:

(1) Plaintiffs’ Complaint and Memorandum in

Support of Motion for Temporary Restraining

Order, Preliminary Injunction and for Declaratory

Relief with

(2) The Affidavits in Support of Plaintiffs’

Motion for Temporary Restraining Order, Prelimi-

nary Injunction and Declaratory Relief. (Plaintiffs’

Exhibits 1-7.)

(3) Defendants’ Motion to Dismiss, or in the

Alternative, Motion for Summary Judgment for the

Defendants and Motion to Dissolve the Three

Judge Court and Memorandum of Law.

(4) Statement of Professor Richard Smolka.

(Defendants’ Exhibit 1)

(5) Statement of State Elections Administrator

Willard Morris and Appendices. (Defendants’

Exhibit 2)

(6) Transcript of Hearing held May 12, i976.

III. The following questions are presented by this

appeal:

(1) Whether the United States District Court for

the District of Maryland, sitting as a three judge

court pursuant to 28 U.S.C. 2284, erred in examin-

ing in isolation the deadline under Maryland law

for filing nominating petitions in a Presidential

election year (seventy days before the primary

election) without considering the other elements of

Maryland’s system of gaining access to a place on

the general election ballot, and concluding that the

18a

i itself, constitutes

statutory deadline, standing by itself,

an unconstitutional denial of Appellee Bradley's

right to obtain a place on the general —

ballot and the other Appellees’ right to vote for

him? - oe

2) Whether the District Court erred in conciud-

. Pr Hicks v. Miranda, 422 U.S. 332 (1975),

required it to give effect to every particular of the

lower Court’s decision in Salera v. Tucker, 399 F.

Supp. 1258 (FE.D. Pa. 1975), aff'd summarily ¢

nom. Tucker v. Salera, —— U.S. __.. 47 L. Ed. 2

727 (1976), so as to effectively overrule five recent

summary decisions of this Court and to ignore the

rationale of at least two written decisions of this

Court? a

(3) Whether, as a result, _the District Court

abused its discretion in enjoining Appellants. from

refusing to accept additional nominating petitions

and signatures submitted by Appellees after the

statutory filing deadline?

Respectfully submitted,

FRANCIS B. BURCH,

Attorney General of Maryland,

GeorGE A. NILSON,

Assistant Attorney General,

Rospert A. ZARNOCH,

Assistant Attorney General,

1400 One South Calvert Bldg.,

Baltimere, Maryland 21202

Attorneys for Appellants.

PROOF OF SERVICE

I, George A. Nilson, Assistant Attorney General, one

of the rr for Appellants herein, and a member of

the Bar of the Supreme Court of the United aaa,

hereby certify that, on the third day of June, e+e

served copies of the foregoing Notice of Appeal to the

Supreme Court of the United States on the Plaintiffs by

mailing copies in duly addressed envelopes, with first

class postage prepaid, to their respective attorneys of

19a

record as follows: Jon T. Brown, Esquire and James D.

Pembroke, Esquire, Duncan, Brown, Weinberg &

Palmer, 1700 Pennsylvania Avenue, N.W.., Washington,

D.C. 20006, and James M. Smith, Esquire, Gebhardt &

Smith, Suite 3405, 222 St. Paul Street, Baltimore,

Maryland 21202, Attorneys for Plaintiffs.

GEorRGE A. NILSON,

Assistant Attorney General.

STATUES INVOLVED

Annotated Code of Maryland — Art. 33

NOMINATION BY PETITION

§ 7-1 General provisions.

(a) Who may be nominated by petition. — A candi-

date for any public office who is registered as an

independent or who is a member of or affiliated with a

partisan organization which is not a political party as

defined in this article or who is not a member of a

political party whose nominees must be nominated by

means of primary elections, may be nominated by

petition, as in this section provided. Nothing in this

subsection applies to candidates or nominations for

election to county boards of education.

(b) Certificate of candidacy; filing fees. — A candi-

date for public office seeking nomination by petition

shall file a certificate of candidacy under the provisions

of the subtitle “Certificate of Candidacy” of this article

with a sworn statement attached that he has on file

with the election board or the several boards of the

State petitions signed by not less than three per centum

(3%) of the registered voters who are eligible to vote for

the office for which such nomination by petition is

sought. The number of registered voters shall be

determined as of the commencement of the four-month

period before the primary election for which the

nomination is sought. Candidates nominated by peti-

tion must pay the fee prescribed in § 4A-6 of this article

in the same manner as candidates for nomination at a

primary election, with the filing of the certificate of

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did of the candidate. Such fees shall be disposed

of in ie same manner as provided in §4A-8 of this

article.

rm of petition; affidavit. — The signatures shall

an Patygrsete 4 ow to one paper but shall be on separate

papers, bearing one or more signatures and being no

more than 8% inches in width or 14 inches in length.

Such paper shall not contain the names of ee

residing in more than one county or in any county an

in the City of Baltimore. Each signer shall append to

his signature his residence, and the name of the county

or city where he is registered as a voter, and imme-

diately below the signature of any signer there shall be

either printed or typed the name of the signer. Every

paper shall be accompanied by an affidavit or affidav-

its made before a notary public, or other officer

authorized to take oaths under the laws of this State, by

one or more persons known personally to the notary

public or other officer, and so certified by him and

signed by the affiants, to the effect that the signers are

known to such affiant or affiants to be registered voters

of the county or city as set forth in the petition, and

that the affiant or affiants personally saw the signers,

in regard to whom he or they make oaths, sign the

paper. sont

(d) Restrictions on signers. — No person shall join in

nominating more than one nominee for each office to be

filled; nor shall any person sign more than once for the

same nominee for an office.

(e) Verification of signatures; endorsement; delivery

of petitions to boards and to State Administrative

Board of Election Laws; we ag gry of reoOY "

signers. — Any paper which is orm a

certificate of pn ll > se shall be submitted to the board

for the county or the City of Baltimore in which the

signers on the paper are alleged to reside. The board

shall give to anyone rg hy 4 such om -

apers a signed receipt stating that the paper o

can ae file with the board. It shall be the duty of the

several boards in the jurisdiction in which the signers

are alleged to be registered voters to verify the number

ee i fe

2la

of legitimate signatures of persons who are registered

voters. On any petition, including an associated or

included set of petitions, submitted to the board, any

question concerning the invalidity of the signature of

any person on the petition affects that signature only

and does not affect or impair any other portion of the

petition or petitions. Following the verification, a dul

authorized employee of the board shall endorse on eac

paper the number of signatures verified by the em-

ployee and shall endorse and sign the paper. For the

purpose of the endorsement, each paper shall contain a

blank space for the endorsement. The papers shall be

delivered to the boards not later than 9:00 p.m. on the

Monday which is ten weeks or seventy days before the

day on which the primary election should be held under

the primary election law, or, in the case of candidates

for an office to be filled pursuant to § 22-1 (b) of this

article, the papers shall be delivered to the boards not

later than 9:00 p.m. on the Monday which is three

weeks or twenty-one days before the day on which the

special primary election is to be held under the

Governor’s proclamation setting the date for the special

primary election. All papers delivered to a board

pursuant to this subsection and required to be filed with

the State Administrative Board of Election Laws

pursuant to § 4A-2 shall, after verification and endorse-

ment as herein required, be mailed or delivered by the

board to the State Administrative Board of Election

‘Laws, on the Monday which is five weeks or thirty-five

days before the day on which the primary election

should be held under the primary election law or, in the

case of candidates for an office to be filled pursuant to

§ 22-1(b) of this article, on or before the Monday which

is two weeks or fourteen days before the day on which

the special primary election is to be held under the

vernor’s proclamation. The State Administrative

Board of Election Laws shall determine the sufficiency

of the percentage of registered voters signing petitions

in those cases in which candidates file certificates of

nomination or of candidacy in its office. In all other

instances, such determination shall be made by the

local boards.

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(f) Effect of insufficient number of signatures. — If

the total required number of signatures is not properly

appened to the petition, it shall be declared insuffi-

cient and the name of the proposed candidate shall not

be placed on the ballot.

CERTIFICATE OF CANDIDACY

§4A-: Requirements for persons seeking nomi-

nation; listing and use of names, nick-

names, titles, etc.

(a) Each person seeking nomination to any public or

party office at a primary election, shall file a certificate

of candidacy for nomination in the manner and at the

time provided in this subtitle. Such person who is a

candidate for any State, local, or party office must be a

registered voter of the particular county or district in

which he seeks to be nominated. A candidate for any

federal, State, local or party office shall be affiliated

with the party whose nomination or office he seeks.

Before finally placing the name of such a candidate on

the ballot at the succeeding primary election, the board

shall determine that the candidate meets the registra-

tion and affiliation requirements of this section. The

requirements of this section shall not apply to the party

affiliation of any candidate for judicial office for which

candidates are permitted to be listed on the ballot

without party designation; but the requirements shall

be applicable to the filing of any vacancy in any public

or party office.

* * * * * x

§4A-3. When filed.

Except for certificates of candidacy filed by write-in

candidates and as otherwise provided herein, certifi-

cates of candidacy shall be received and filed in the

office of the appropriate board not later than nine >.

on the Monday which is ten weeks or seventy days

before the day on which the primary election should be

held under the primary election law. Certificates of

candidacy for an office to be filled by a special election

pursuant to § 22-1(b) of this article, shall be received

“a oe eee

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and filed in the office of the appropriate board not later

than nine p.m. on the Monday which is three weeks or

twenty-one days before the day on which the special

primary election is to be held under the Governor’s

proclamation setting the date for the special primary

election. If the filing date should occur on a legal

holiday, the certificates must be received and filed not

later than nine p.m. on the next regular business day

which is not a legal holiday.

* * * * . «

§5-2. Date.

(a) In general. — The primary elections by the

political parties for candidates for State offices and

State central committee shall be held throughout the

State on the second Tuesday after the first Monday in

September. The primary elections by the political

parties in each year in which a national convention is

held for the nomination of candidates for President and

Vice-President shall be held throughout this State on

the third Tuesday in May. A special primary election to

fill a vacancy in the office of Representative in

Congress shall be held on such date as the Governor

shall specify pursuant to § 22-1(b) of this article.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.