Appellants Brief — Mandel v. Bradley

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IN THE

Supreme Court of the United States

OcTOBER TERM, 1976

No. 76-128

MARVIN MANDEL, GoveRNOoR OF MARYLAND, ET AL.,

Appellants,

Vv.

BRUCE BRADLEY, Et At.,

Appellees.

APPEAL FROM A UNITED STATES District COURT OF

THREE JUDGES FOR THE DISTRICT OF MARYLAND

BRIEF FOR APPELLANTS

FRANCIS B. BURCH,

Aitorney General

of Maryland,

GEORGE A. NILSON,

Deputy Attorney General,

Ropert A. ZARNOCH,

Assistant Attorney General,

1400 One South Calvert Bidg.,

Baltimore, Maryland 21202,

Attorneys for Appellants.

The Daily Record Co., Baltimore, Md. 21202 <> ~

TABLE OF CONTENTS

OPINION BELOW .............0..00000- GREETS ar SO Ce

ee eee Ee Ree a ee

CONSTITUTIONAL AND STATUTORY PROVISIONS

GEL TEAR DIE Re EN ENE AOI

GOUREOED FPUIGTIISTGEDD occccccccccccecesccceccccsccescccecssseseses

STATEMENT OF THE CASE ....ccccccocccocccccccccscccsscccsccees

SUMMARY OF ARGUMENT. ..............ccccecsesssssereeeeeeeees

Aspelicatble PYIRCHBIOS ..0..ccccccsccccsccssccccecccecessseces

“Burdens” of Section 7-l(e) Deadline ...........

Discrimination Against Independents ..........

Substantial State Interests Justify the Sec-

I re ics

Precedential Effect of Salera v. Tucker .......

ARGUMENT:

II.

Decisions of this Court require that the

constitutionality of subjecting independ-

ent candidates to Maryland’s uniform

pre-primary filing deadline be gauged

not in isolation but in conjunction with

other elements of the State’s system

regulating access to the general election

ballot and in light of the actual expe-

rience of independent candidate ballot

TI RN OE a AOE ORO OE en IPN

Whether viewed in isolation or in the

context of the overall regulatory scheme

for State ballot access, Maryland’s

uniform pre-primary filing deadline

PAGE

does not place excessive or substantial

burdens on the rights of independent

i 19

III. Maryland’s uniform pre-primary filing

deadline workably adjusts the relative

burdens of obtaining general election

ballot access and does not discriminate

against independents ................ccccccceeeeees 30

IV. Even if Maryland’s’ uniform pre-

primary filing deadline is found to

excessively burden constitutional rights

and thus discriminate against inde-

pendent candidates, any deprivation of

Bradley’s rights is justified by numer-

ous compelling or substantial interests 35

V. Hicks v. Miranda did not relieve the

District Court of its obligation to distin-

guish and harmonize prior summary

affirmances and written decisions of

this Court upholding the constitutional-

ity of statutes such as Section 7-1l(e) nor

did it suggest that summary affirman-

ces represent an adoption of the precise

reasoning of the lower court .................. 39

I cin 46

TABLE OF CITATIONS

Cases

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

EERIE IS LAE, OER Soe oo Caer ROE 23, 30, 36

Auerbach v. Mandel, Civil No. 74-141-N (D. Md.

March 3, 1972), aff'd 409 U.S. 808 (1972) 11, 12, 13,

14, 17; 22, 32, 37, 40, 41, 42

ill

PAGE

Buckley v. Valeo, USS. , 46 L. Ed. 2d 659 ,

eater NE SER AE: 57 INS, eer 18, 38, 41

Bullock v. Carter, 405 U.S. 134 (1972) ........000.. 35

Edelman v. Jordan, 415 U.S. 651 (1974) ............. 42

Fusari v. Steinberg, 419 U.S. 379 (1975) ............. 42

Gibson v. Berryhill, 411 U.S. 564 (1973) ............. 42

Hicks v. Miranda, 422 U.S. 332 (1975) .......5, 12, 14, 15,

39, 41, 42, 43

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

Oe Oe oc scsalieaiinnaon 12, 31

Jenness v. Fortson, 403 U.S. 431 (1970) ..12, 13, 14, 17,

18, 19, 23, 24, 31, 32, 35, 40, 41, 46

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

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

el 11, 12, 23, 41

Munsell v. Hennegan, 182 Md. 15 (1943) ........... 21

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

aff'd 409 U.S. 943 (1972) ..........cccccccscsees 12, 14, 31, 41

Reeves v. Reeves, 275 Md. 599 (1975) ...............00 36

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) ....... 5,11, 14,

15, 18, 23, 30, 39, 40, 41, 42, 43, 44, 45, 46

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

1262 (S.D. Ohio 1970), affd sub nom.,

Sweetenham v. Gilligan, 409 U.S. 942 (1972) 12,40

Storer v. Brown, 415 U.S. 724 (1974) ..13, 16, 17, 18, 19,

24, 30, 40, 41, 44, 46

Williams v. Rhodes, 393 U.S. 23 (1968) 12, 17, 22, 30, 41

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

1970), aff'd 400 U.S. 859 (1970) 0... eee eee 22, 41

Statutes

PAGE

Annotated Code of Maryland (1951):

Article 33—

EN ne 21

Annotated Code of Maryland (1976 Replacement

Volume):

Article 33—

Section G-Blea) -ceccccccesscsssssevesssensesnaeae 20

Bectiee Fo] ..cccccssccsssosssssconesssssenenneiennannnn 22

SeCtReee TEE) cnceccsecuseccesonssentensmmaaaaaaa passim

Constitution of the United States:

Fivet AmmetnQnttt ..ccccercscscssssisisedeneel 2,12

Fourteenth Amendment, Section 1 ................ 2

Laws of 1969 of Maryland:

CRreptee G6 nnccccncccesnssscsccnsssecunsnsssnnannniinnnnnnannne 20

ka 20

Z3 UBC. GBB ncececcosscsceccnsinessncnssassuunnaae 40

Miscellaneous

Note: The Precedential Weight of a Dismissal

by the Supreme Court for Want of a Substan-

tial Federal Question: Some Implications of

Hicks v. Miranda, 76 Columbia L. R. 508

(AGTG) ..000c00cccssecenssoseesannessniceuisnennnennnnnnnnnnnnnnnnn 43

IN THE

Supreme Court of the United States

OcTOBER TERM, 1976

No. 76-128

MARVIN MANDEL, GoveRNOR OF MARYLAND, ET AL.,

Appellants,

Vv.

BRUCE BRADLEY, ET AL.,

Appellees.

APPEAL FROM A UNITED STATES DistRICT COURT OF

THREE JUDGES FOR THE DISTRICT OF MARYLAND

BRIEF FOR APPELLANTS

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 to the Appellants’

Jurisdictional Statement (AJS. 1a).!

| References to the Appendix to tne Jurisdictional State-

ment will be cited as “AJS.,” and references to the Appendix

to this Brief for Appellants as “A.” The pagination in the

Appendix to the Jurisdictional Statement is in the form “la,

- =: . .’ while that of the Single Joint Appendix is “1A,

JURISDICTION

The jurisdiction to entertain this appeal from a

decision of a United States District Court sitting as a

court of three judges, is premised upon 28 U.S.C. §1253.

The judgment of the District Court was entered on June

2, 1976. Appellants noted an appeal two days thereafter

and probable jurisdiction was noted by this Court on

October 4, 1975.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, Amendment I:

“Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people

peaceably to assemble, and to petition the Govern-

ment for a redress of grievances.”

United States Constitution, Amendment XIV, §1:

“All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or

immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty,

or property, without due process of law; nor deny to

any person within its jurisdiction the equal

protection of the laws.”

Maryland Code (1976 Repl. Vol.) Article 33, §7-1(e), the

statute which the District Court determined was

unconstitutional, reads as follows:

“. .. Any paper which is to form a part of a

certificate of candidacy shall be submitted to the

board for the county or the City of Baltimore in

~ em,

which the signers on the paper are alleged to

reside. The board shall give to anyone submitting

any such paper or papers a signed receipt stating

that the paper or papers are on file with the board.

It shall & the duty of the several boards in the

jurisdiction in which the signers are alleged to be

registered voters to verify the number 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 duly authorized employee of the

board shall endorse on each paper the number of

signatures verified by the employee 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 endorsement 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 Governor’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.” (Emphasis added).

This statute, which was reenacted with minor

revisions by the Maryland General Assembly, effective

July 1, 1976, now appears as Maryland Code (1976 Repl.

Vol., 1976 Cum. Supp.) Article 33, §7-1(e) through (m).

Also relevant to this case 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 to Appellants’ Jurisdictional

Statement.

QUESTIONS PRESENTED

1. Whether decisions of this Court require that the

constitutionality of the uniform deadline under Mary-

land law for filing nominating petitions in a Presiden-

tial election year (seventy days before the primary

election) be gauged in conjunction with other elements

of Maryland’s system of gaining a place on the general

election ballot rather than in isolation?

. 2. Whether that statutory deadline, viewed in

isolation or in the context of the overall regulatory

scheme for State ballot access, constitutes an unconsti-

tutional denial of Appellee Bradley’s right to obtain a

place 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 summary disposition principles

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

required the District Court in this case to adopt the

precise reasoning of the lower court’s opinion in Salera

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

summarily sub nom, Tucker v. Salera, US. , 96

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

distinguish and harmonize prior summary affirmances

and written decisions of this Court upholding the

constitutionality of similar uniform filing deadlines?

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, decided to run as an independent

candidate in Maryland for the United States Senate in

1976 (A. 50A-51A). 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 (A. 20A). 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 March 8, 1976

(A. 39A). 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 (A. 23A). Signatures had been invali-

dated 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,

- yA persons who had previously signed the petition

(R. 49).

Two weeks later Bradley and various supporters who

alleged only their status as petition signators 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. They

contended in their complaint that their constitutional

rights had been violated in that the remoteness of the

early March candidate filing date from the date of the

general election, standing by itself, placed an “uncon-

stitutionally heavy burden” on Bradley’s ability to be

nominated 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 Amend-

ment in that party primary candidates need not comply

with the petition requirement while “independent

candidates must comply with the unnecessarily burden-

some requirement of filing nominating petitions at a

date far removed from the date of the general election”.

Appellees also challenged certain aspects of the

signature validation procedures and other practices of

the local election boards as “exacerbating the remote-

ness of the filing deadline”. However, this issue was

neither pressed by Appellees nor decided by the lower

court.

At the hearing before the three-judge panel, Appellees

introduced affidavit testimony designed to show that

Bradley had encountered difficulties in his efforts to

obtain media coverage (A. 18A) and to appear before

various organizations prior to the filing deadline, with

several of the latter indicating that he might appear

later with other candidates running in the primary

election (A. 27A-30A). Some testimony was offered as to

the alleged difficulties inherent in circulating petitions

in winter weather and during the Thanksgiving and

Christmas holiday seasons (A. 22A). 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 (A. 17A).

While Appellees premised their constitutional attack on

the 70 day pre-primary deadline solely on its remote-

ness 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 favorably 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 inde-

pendents may be affiliated with the major parties and

are not disqualified from voting in the primary elec-

tions.

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. Petitions may be circulated by non-residents and

persons not registered to vote in Maryland.

6. Because of Maryland’s liberal registration by

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

taneously approach signators and furnish them with a

registration by mail form which need only be completed

and mailed to complete registration (A. 32A-36A).

In addition, Professor Richard Smolka of American

University, 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 (A. 33A). He further

testified that unlike a primary candidate, an independ-

ent does not have to defeat an opponent to get on the

general election ballot, usually spends less money, 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”

for nomination 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 contributions, primary candi-

dates 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 campaign” (A. 33A-35A). Professor

Smolka’s testimony was supported by Willard A.

Morris, the State Administrator of Election Laws (A.

41A).

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 (A. 43A-44A), 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 Representa-

tives (A. 60A-61A). As already noted, Mr. Bradley

himself would have qualified had a higher percentage

of his submitted signatures been valid.

The State of Maryland asserted as substantial or

sufficient numerous State interests served by the

simultaneous filing deadline for primary candidates

and independents. These included:

1. The prevention of frivolous and fraudulent

independent candidacies maturing only after the

conclusion of the primary elections.

2. The elimination of voter confusion caused by

late blooming candidacies, a consideration espe-

cially important in a Presidential year when

political activity is both more intense and more

long lasting.

3. The need to insure that both party primary

candidates and independent candidates, including

those who obtain general election ballot access, are

afforded relatively comparable treatment and that

neither are given an unfair advantage.

4. The fostering of public discussion of cam-

paign issues among all candidates when voter

interest is at its zenith, rather than allowing

independent candidacies to remain embryonic or

dormant until the primaries have ended.

5. The prevention or alleviation of the adminis-

trative problems 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 stil]

preserving the right of Maryland voters to express

themselves early 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) standing by

itself constitutes “an unconstitutional burden on

Bradley’s right to become an independent candidate

and on the rights of the other plaintiffs to exercise their

right to vote” (AJS. 12a) and that Bradley had a

constitutional right to collect the requisite number of

valid signatures until the date of the primary election.

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 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

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

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

nom. Tucker v. Salera, 96 S. Ct. 1451 (1976). (AJS. 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 there struck down

the Pennsylvania filing deadline by viewing it in

conjunction with the brief signature gathering period,

and even though the practical effect of the Salera

decision was to eliminate the three week limitation for

the plaintiffs in that case, the Bradley court 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

(AJS. 9a). The lower court here rejected the proffered

compelling interests asserted by Pennsylvania in

Salera (administrative 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 (AJS. 6a-8a). In

addition, the court held that Maryland’s simultaneous

filing deadline for independents and primary candidates

could not be justified on a comparable or equal

treatment theory.

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,

which had been summarily affirmed by this Court

(Auerbach v. Mandel, Civil No. 71-141-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

from other jurisdictions (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): Pratt

uv. Begley, 352 F. Supp. 328 (D. Ky. 1970), aff’d 409 U.S.

943 (1972); 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 7-1(e) filing deadline, while “it seemed to reflect

the law at the time it was uttered”, was “pure dictum”.

(AJS. 11a.) 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 the constitutionality

of the Maryland filing deadline in summarily affirming

those decisions (AJS. 11a).

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.?

SUMMARY OF ARGUMENT

The District Court erroneously concluded that Mary-

land’s statutory deadline for filing nominating petitions

(Maryland Code, Article 33, Section 7-1(e)) excessively

burdened Appellee Bradley’s First Amendment right to

associate for political purposes and the other Appellees’

* In addition to the cases ci

denigrated as “no longer Prag Ain a ee

treatment of pre-primary deadlines the written opinions of

this Court in Jenness v. Fortson, 403 U.S. 431

Williams v. Rhodes, 393 US. 23 (1968). (AJS. — and

right to vote effectively so as to discriminate against

independent candidates.

APPLICABLE PRINCIPLES

Decisions of this Court require lower courts to weigh

the constitutionality of a filing deadline for independ-

ent candidates in conjunction with other elements of

the State’s system of general election ballot access and

in the light of the actual experience of independent

candidates in obtaining a place on the ballot. Storer v.

Brown, 415 U.S. 724 (1974); Jenness v. Fortson, 403 US.

431 (1970); Auerbach v. Mandel, 409 U.S. 808 (1972).

The District Court in this case ignored these principles

by examining Maryland’s filing deadline in isolation

and by failing to note the significant number of

independent candidates who qualified for access to the

general election ballot ia 1974 and 1976 or the fact that

Appellee Bradley filed the requisite amount of signa-

tures by the deadline at issue in this case.

“BURDENS” OF SECTION 7-1{e) DEADLINE

Only excessively or severely burdensome ballot

access requirements merit constitutional scrutiny.

Storer v. Brown, supra. Maryland’s uniform pre-

primary filing deadline does not place an excessive

burden on an independent’s constitutional rights.

because signatures can be gathered months or years

before the deadline and the State’s nomination by

petition process imposes no “suffocating restrictions”

upon the free circulation of nominating petitions.

Moreover, in many respects independent candidates in

Maryland have an easier route to the general election

ballot than primary candidates. And the evidence in

this case demonstrates that Bradley’s initial failure to

obtain a place on the general election was due more to

the inefficiency of his petition circulation campaign

than to the Section 7-l(e) filing deadline.

DISCRIMINATION AGAINST INDEPENDENTS

Maryland’s uniform pre-primary filing deadline does

not discriminate against independent candidates.

Decisions of this Court recognize that uniform filing

deadlines promote equal treatment for all candidates.

Jenness v. Fortson, supra; Pratt v. Begley, 409 U.S. 943

(1972); Auerbach v. Mandel, supra. Instead of Mary-

land’s workable scheme for adjusting the relative

burdens of obtaining general election ballot access, the

District Court has created a system that unjustly

discriminates against primary candidates and imposes

greater hardships on all candidates.

SUBSTANTIAL STATE INTERESTS JUSTIFY THE

SECTION 7-l(e) DEADLINE

Whatever burdens may be placed on independent

candidates by Section 7-l(e) and whatever discrimina-

tion may be said to arise from Maryland’s filing

deadline are supported by numerous substantial inter-

ests, including the prevention of frivolous or fraudulent

candidacies, the promotion of voter and candidate

knowledge of all general election candidates at the

same time, the fostering of an even-handed system of

ballot access which prevents independents and primary

candidates from obtaining an unfair advantage, the

stimulation of public discussion among all candidates

when voter interest is at its zenith and the preservation

of the right of Maryland voters to be heard at an early

point in a Presidential election year as to their choice

for Presidential nominees.

PRECEDENTIAL EFFECT OF SALERA V. TUCKER

The lower court erred in concluding that the summary

disposition principles articulated in Hicks v. Miranda,

422 U.S. 332 (1975) required it to adopt its perception of

the precise reasoning of the lower court opinion in

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

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

overrule five summary affirmances and two written

Supreme Court decisions supporting the constitutional-

ity of filing deadlines such as that set forth in Section 7-

l(e). Hicks applies to summary dismissals, not sum-

mary affirmances; it involved a federal court's

disregard of a prior summary dismissal of an appeal

from a state court decision upholding the constitutional-

ity of the same statute before the federal court. But even

if Hicks is held to apply to summary affirmances, it

does not relieve a lower court of its obligation to

distinguish and harmonize prior summary affirmances

and written decisions of this Court. Finally, the District

Court here disregarded numerous opportunities to

distinguish Salera and avoid a draconian reversal ofa

long line of cases which support the constitutionality of

Maryland’s uniform pre-primary filing deadline.

ARGUMENT

DECISIONS OF THIS COURT REQUIRE THAT THE CONSTITU-

TIONALITY OF SUBJECTING INDEPENDENT CANDIDATES TO

MARYLAND’S UNIFORM PRE-PRIMARY FILING DEADLINE BE

GAUGED NOT IN ISOLATION BUT IN CONJUNCTION WITH

OTHER ELEMENTS OF THE STATE’S SYSTEM REGULATING

ACCESS TO THE GENERAL ELECTION BALLOT AND IN LIGHT

OF THE ACTUAL EXPERIENCE OF INDEPENDENT CANDI-

DATE BALLOT ACCESS.

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

isolated 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 ‘considerjing] 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).

In Storer, the Court ordered a three-judge federal

panel to weigh the constitutionality of California

Election Code provisions requiring an independent

candidate to file petitions signed by five percent of the

entire vote in the preceding election and gathered over a

particular twenty-four day period in conjunction with a

statute which disqualified voters who voted in the

primary from signing an independent’s petition. At the

same time, the Court indicated that the only exception

to the rule requiring courts to assess the “totality” of

election laws as they affect constitutional rights was

when a single challenged statute “absolutely barred” a

candidate from the ballot and the facial validity of the

provision was questioned. 415 U.S. at 737.3

* This exception to the totality rule appeared almost as a

rule of standing so as to prevent candidates validly barred by

one election law provision from challenging others.

As a practical matter, candidate or nominating

petition filing deadlines are not absolute bars to an

independent candidacy, for, in the words of Storer, they

do “change [their] character when combined with other

provisions of the electoral code’’. Jd. at 737.‘ In addition,

this Court has always viewed such statutory provisions

in conjunction with other features of state election laws

in gauging their effect on a candidate’s constitutional

rights. For example, in Jenness v. Fortson, 403 U.S. 431

(1970), this Court upheld the constitutionality of a five

percent signature gathering requirement as coupled

with a 180-day signature circulation period ending

sixty-nine days before the primary and five months

before the general election and various other statutory

provisions which fostered the “open quality” of the

State electoral system. Jd. at 439. And in Williams v.

Rhodes, 393 U.S. 23 (1968), a candidate filing deadline

was struck down but only in conjunction with restric-

tive provisions of Ohio law which made it virtually

impossible for a nonparty candidate to obtain ballot

access. Moreover, in the specific context of Maryland’s

nomination by petition law, this Court has apparently

examined the filing deadline at issue in this case as it

operates in tandem with other state election law

provisions. In Auerbach v. Mandel, No. 72-141-N (D.

Md. March 3, 1972), aff'd 409 U.S. 808 (1972), the only

portion of Section 7-l(e) challenged was the filing

deadline set therein. Jurisdictional Statement, at 12;

Auerbach v. Mandel, supra. Yet this Court indicated in

Storer that it had also approved the signature percen-

tage requirement of Section 7-l(e) in affirming Auer-

bach, 415 U.S. at 739 N. 10.

‘ The District Court in Bradley made no explicit finding

that Maryland’s filing deadline was “facially invalid”. It

merely declared that “Plaintiffs are being deprived of their

constitutional rights by the operation of Section 7-I(e)”.

(Emphasis added). (AJS 14a).

In mandating that the alleged burdens of a particular

election law provision, such as a filing deadline, be

gauged in tandem with other election code features, this

Court has charged lower courts to inquire into the

“nature, extent and likely impact” of the requirements,

Storer v. Brown, supra, at 738, and to look to actual

experience as an unerring guide of the extent of the

burdens imposed by the statutory scheme. Id. at 742;

Jenness v. Fortsen, supra, at 439. See also Buckley v.

Valeo, U.S. , 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 i dependent candidates must be justi-

fied by the showing of compelling state interests. Id. 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.

Under the lower court’s inflexible invalidation of pre-

primary deadlines, 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 sigr.atures must be filed

by a specified date weeks or months before the state’s

primary elections.

The fundamental unsoundness of considering the

statutory deadline in isolation rather than as a part of

the overall scheme is further highlighted by the lower

court’s fashioning of a rule which ignores the actual

experience of independent ballot access in Maryland.

History has proven that non-major party candidates

have fared well in Maryland (A. 41A-49A). For example,

eight local candidates qualified as independents under

Maryland’s nomination by petition procedure in 1974

(which was the same as it is now), and two Congres-

sional candidates filed the requisite number of valid

signatures by the March 8 deadline in 1976. Even

Appellee Bradley filed more than the required number

of signatures by the deadline at issue in this case; his

quest for a place on the ballot without the help of the

courts was stymied because a number of those signa-

tures were invalid. 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

ballot access restriction was deliberately ignored by the

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

vu. Fortson, supra, at 439.

Il.

WHETHER VIEWED IN ISOLATION OR IN THE CONTEXT OF

THE OVERALL REGULATORY SCHEME FOR STATE BALLOT

ACCESS, MARYLAND’S UNIFORM PRE-PRIMARY FILING

DEADLINE DOES NOT PLACE EXCESSIVE OR SUBSTANTIAL

BURDENS ON THE RIGHTS OF INDEPENDENT CANDIDATES.

In 1969, in a substantial reform of the Maryland

election laws, Maryland voters were given the right to

5 See p. 27 infra.

vote for their preference for candidates for President

and to elect delegates to the National Party Conven-

tions held during the summer. Chapter 560 of the Laws

of 1969. This reform replaced a convention system

where the voters had no direct voice in selecting the

party nominee for President. As a matter of course, the

Presidential Preference Primary must take place a

reasonable amount of time before the National Conven-

tion and thus the General Assembly selected the third

Tuesday in May as the date for such primaries.

Maryland Code, Article 33, Section 5-2(a). In non-

Presidential election years, Maryland’s primary elec-

tions are held on the second Tuesday after the first

Monday in September. Zd.

At the same time, substantial revisions were made to

the provisions of Maryland law governing nomination

by petition by Chapter 554 of the Laws of 1969. For the

first time party primary candidates were placed on

exact parity with independent candidates with respect

to filing deadlines. For at least two decades party

primary candidates have had to file their certificates of

candidacy 10 weeks or 70 days before the primary. Prior

to the 1969 change, the deadline for the filing of

nominating petitions had been 30 days later than that

for primary candidates — independents had to file only

40 days before the primary election. In 1969, the 10

week or 70 day provision was also made applicable to

independent candidates seeking nomination by peti-

tion, who thereby were required to file by the same

deadline their certificate of candidacy accompanied by

the requisite number of signatures.

In addition, certain long-standing “burdens” placed

on those circulating nominating petitions were elimi-

nated by Chapter 554. Gone were the former require-

ments that signers state their intention to vote for the

person nominated (a feature still found in some state

laws)’ and specify the precinct or district where

registered’ and that the affiant certify that he knew the

signers to be registered voters of the specific precinct as

set forth in the petition. The requirement that independ-

ent candidates publish their petitions was also aban-

doned.* These reforms eased the burden of the nomina-

tion by petition process in Maryland which was already

more liberal in many respects than under other state

election laws. For example, persons signing petitions

may be members of a party and their signing will not

disqualify them from voting at a primary or general

election in any way they wish; and the affiant

gathering and submitting signatures does not have to

be a registered voter or a state resident. Most impor-

tantly the time period for petition gathering in

Maryland is open-ended. Independent candidates may

gather signatures months, even years in advance of the

filing deadline.’

6 Although this declaration was regarded by Maryland

courts as not legally binding on a voter, Munsell v.

Hanwegan, 82 Md. 15 (1943), its psychological impact on a

potential signer is incalculable.

7 At one time under Maryland law signers had to specify

their occupation and place of business on the petition. See

Maryland Code (1951), Article 33, Section 44.

* In 1968 it cost third party candidate George Wallace

$16,822 and independent senatorial candidate George P.

Mahoney $10,160 to publish their petitions. If Appellee

Bradley had been required to make such an expenditure, it

would have cost him anywhere from one-third to one-half of

his petition campaign budget of approximately $30,000.

Transcript of Proceedings at p. 26.

® In 1969, the nomination by petition law was changed to

require that the signatures of all nominating voters be

submitted to the board with which they are registered. This

change was prompted by the enormous difficulties which had

been encountered in verifying major nominating petitions in

1968 (A. 42A) and was more than justified by the relaxation

The 1969 revisions of the Maryland nomination by

petition law were soon challenged in court. In Wood uv.

Putterman, 316 F. Supp. 646 (D. Md. 1970), aff'd 400

U.S. 859 (1970), a third party which failed to generate a

minimum required showing in a prior election unsuc-

cessfully attacked the statutory requirement that it

must obtain access to the general election ballot

through the petition process. A key issue in the case

was the alleged burden imposed by Section 7-1 of

Article 33. Speaking for the majority of a three-judge

panel, Circuit Judge Harrison Winter contrasted the

Ohio statute struck down in Williams v. Rhodes, supra,

with the Maryland nomination by petition law and

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

es for an office.” (Emphasis added.) Id. at

49.

In 1972 a similar court challenge by a third party

candidate squarely raised the constitutionality of the

Section 7-l(e) filing deadline (which occurred two days

earlier in 1972 than in 1976). In Auerbach v. Mandel,

No. 72-141-N (D. Md. March 3, 1972), aff'd 409 U.S. 808

(1972), Judge Winter, speaking for a unanimous three-

judge court, said that the March 6 filing deadline

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

of the requirements as to the information which must appear

on the petitions and the need to allow the verification process

to be completed in a prompt and efficient manner.

unreasonable or unconstitutionally burdensome and are

not invalid.” !°

An analysis of the entire scheme for nomination by

petition in Maryland demonstrates the correctness of

these prior decisions. Unlike the statute at issue in

Salera v. Tucker, supra, 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

independent and party candidates occurs approxi-

mately 120 days before the general election in non-

Presidential election years''! and 230 to 240 days before

the general election in a Presidential election year only

because in those years the entire electoral process is

“stepped up” and given an early start to afford

Maryland voters the opportunity to voice their prefer-

ence in the Presidential primaries and thereby exert

some influence at the summer conventions. In addition,

Maryland’s nomination by petition process imposes no

“suffocating restrictions” upon the free circulation of

1° The language of the district court’s order in Auerbach

belies the suggestion of the Bradley court that Auerbach did

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

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.

11 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 he justified on the basis of administrative

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

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

nominating petitions and in this important respect

strikingly resembles the Georgia 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.” Id.

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 quest for a place on the ballot

just as the primary candidates are beginning. This is

sheer fiction. Few, if any, primary candidates who

ex ect to win are just launching their campaigns on the

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 (A. 51A).!? (Transcript of

'2 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

Proceedings at 51). In the same vein, Appellees

contended 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 signatures 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% requirement 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.

A close examination of the burdens which Bradley

alleges were imposed upon him as a result of the §7-1(e)

filing deadline demonstrates the insubstantiality of his

attack on the statute. Bradley stated that his independ-

ent candidacy was harmed because the issues debated

during the petition gathering period might not be

important in the 1976 general election (A. 174A).

However, Bradley signature gatherers were instructed

not to discuss issues. See Appendix C to Plaintiff's

Memorandum in Support of Motion for Temporary

Restraining Order (R. ). Their pitch for signatures

centered on giving voters a greater array of choices on

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

+urdensome “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

gery — is on the candidate, and not voters.” 415

». at ,

the ballot. Jd. And the closest signature gatherers

came to discussing “issues” was their characterization

of Bradley to voters who inquired as a candidate who

was “liberal on people issues and conservative on

money issues”. Jd. Appellants submit that in the face of

such a record it remains to be seen how Bradley was

harmed by shifting campaign issues.

Secondly, Bradley’s petition campaign was allegedly

damaged by the lack of press coverage (A. 17A). It is

claimed that the lack of press coverage was due to the

remoteness in time from the primary and genera!

election campaigns. However, what newspapers will or

will not print about any candidate is a speculative

matter. Independent candidates who qualify for the

general election ballot and primary candidates who

have no real contest will often find themselves ignored

by the media. In addition, there is no guarantee that a

nomination by petition campaign would obtain greater

press coverage if the independent filing deadline were

extended to the date of the primary election. If

anything, newspaper coverage of a petition gathering

effort during the primary campaign might be even

harder to obtain because of the attention focused on the

primary. Conversely, there is no reason why the

petition drive of independent candidates should be

legally entitled to any derivative benefits flowing from

increased media interest in primary election cam-

paigns.

Thirdly, Appellees contended that the March filing

deadline hampered Bradley’s ability to obtain invita-

tions to speak before groups (A. 27A-30A). Yet as

Bradley’s instructions to signature gatherers indicate,

his petition campaign was keyed primarily to obtaining

signatures at supermarkets, shopping malls, sporting

arenas, etc. rather than at meetings and conventions.

oem oo

Appendix C to Plaintiffs’ Memorandum in Support of

Motion for Temporary Restraining Order (R. 54). In

addition, if the lack of speaking invitations before the

filing deadline is a burden, it is one shared by primary

candidates.

Finally, despite the fact that in 1976 Maryland had

one of the mildest winters in its history (A. 434A),

Appellees allege that cold and inclement weather and

school vacation schedules during the fall of 1975 and

the winter of 1976 burdened the Bradley signature

gathering effort (A. 22A). If such considerations are to

be given any weight in the constitutional equation, the

course of constitutional adjudication will become as

unpredictable as the weather.

As the nature of Appellees’ excuses for the initial

failure of Bradley’s nomination by petition campaign

indicate, the §7-l(e) filing deadline is not the cause of

the candidate’s problems. Rather, the evidence demon-

strates that the inefficiency of the signature gathering

effort was the prime reason for its failure. For example,

Bradley’s campaign manager testified with respect to

the turmoil in the campaign organization (A. 20). In

addition, Bradley paid signature gatherers on a per

‘signature basis rather than for each valid signature

(Transcript of Proceedings at 19-20) and suffered from

an invalidation rate of over 20% (A. 39A). He did not

use the postcard-registration technique to sign up

unregistered voters (Transcript of Proceedings at 37).

He also did not begin gathering signatures as soon as

he could have and raisea and spent far less than the

principal candidates in the Democratic Primary.

Transcript of Proceedings at 26-27.

In short, it was not pre-primary filing deadline which

would have kept Bradley off the general election ballot,

but his failure to conduct a sufficiently vigorous and

efficient petition campaign.

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 “turned off’ by excessive political

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

general election ballot before the others have had an

opportunity 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

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. 8-9 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 campaigr. during a period immediately

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 particu-

lar 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 iater return to that same

voter to try again. Fourth, the choice made by a voter in

a primary election is an irrevocable 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 ap-

proached 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.

'S 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. ile this distinction does

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

true for all State office candidates.

Maryland does not question the tenet that State

ballot access restrictions, including early filing dead-

lines, can in some cases substantially and unconstitu-

tionally burden the rights of independent candidates

and their voting constituency. Williams v. Rhodes,

supra. Nor does the State challenge the result reached

in Tucker v. Salera, supra, viz., that a three week gath-

ering period for signatures that ends eight months be-

fore the general election is unconstitutional. The State

does contend 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 Salera'‘ and that 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 7-1(e) filing

deadline is not “excessively” burdensome.

III.

MARYLAND'S UNIFORM PRE-PRIMARY FILING DEADLINE

WORKABLY ADJUSTS THE RELATIVE BURDENS OF OBTAIN-

ING GENERAL ELECTION BALLOT ACCESS AND DOES NOT

DISCRIMINATE AGAINST INDEPENDENTS.

In Storer v. Brown, supra at 729, this Court indicated

that even if election law provisions are found to

“excessively burden” the right to vote effectively and

the right to associate for political purposes, these

burdens must result in discrimination against an

14 The State also contends that the justifications proffered

for Maryland’s uniform pre-primary filing deadline are

different from and more substantial than those asserted in

Salera. See pp. 35-39 infra.

independent candidate in order to call into play

constitutional scrutiny.

It can hardly be contended that Maryland’s scheme

of 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 specifi-

cally 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

the second Wednesday in June, the same deadline

that a condidate 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 uniform pre-primary filing deadline. for all candi-

dates was also present in Jackson v. Ogilvie, 325 F.

Supp. 864, 867 (N.D. Ill. 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. 943 (1972) where a three-judge federal court

upheld a filing deadline for independents which

occurred 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.

Feiling to observe that a Presidential election year

places greater burdens on all Maryland candidates and

that the State has a significant interest in equalizing

these burdens, the lower court has fashioned a rule

which affords advantages to independent candidates

which are not available to primary candidates and

ultimately places greater burdens on all candidates.'®

15 In Jenness v. Fortson, supra, at 440, this Court was

distinctly aware of the fact that a state system of ballot

access can discriminate against primary candidates and in

favor of independents when it noted:

“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 any particular office will, of course,

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

us that in the most recent election year there were 12

candidates for the nomination for the office of Governor

in the two party primaries. 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

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.”

In addition, the District Court decision stands as a

warning to states that they dare not attempt, even for

the ultimate benefit of the voters and the electoral

process, to place party candidates and independents on

an equal or comparable footing lest they risk a finding

of unconstitutional discrimination.

For example, the lower court in Bradley belittled the

primary candidate’s need to know the identity of the

independent 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” (permitting an independent candi-

date to file his certificate of candidacy at the same time

as primary candidates but not demanding the neces-

sary signatures until the primary elections or thereaf-

ter) the primary election victor 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 commit-

ted 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 light of

the thirty-five 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).

Moreover, if an independent candidate is to have a

chance at success in the general election against a

party opponent, it is important that his status as a

candidate be determined at the earliest possible

moment. For example, Appellee Bradley, in an affidavit

attached to his complaint and filed two weeks after

being notified of the insufficiency of his petitions, urged

the District Court to grant him expeditious relief

because “the campaign has received calls from poten-

tial contributors who will donate only after Mr. Bradley

is officially on the ballot” (A. 24A). Thus, Bradley’s own

evidence attests to the vital need for independents to

qualify at an early date — an interest served by the pre-

primary filing deadline.

In short, instead of Maryland’s non-discriminatory,

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 a system that unjustly

discriminates against primary candidates and imposes

greater hardships on all candidates.

IV.

EVEN IF MARYLAND’S UNIFORM PRE-PRIMARY FILING

DEADLINE IS FOUND TO EXCESSIVELY BURDEN CONSTITU-

TIONAL RIGHTS AND THUS DISCRIMINATE AGAINST INDE-

PENDENT CANDIDATES, ANY DEPRIVATION OF BRADLEY’S

RIGHTS IS JUSTIFIED BY NUMEROUS COMPELLING OR SUB-

STANTIAL INTERESTS.

The basic justification for any nonimation by petition

scheme for independent candidates lies in the State’s

duty “to protect the integrity of its political processes

from frivolous or fraudelent candidates”. See Bullock v.

Carter, 405 U.S. 134, 145 (1972) and Jenness v. Fortson,

supra at 442. Maryland’s uniform pre-primary filing

deadline fosters this interest. If independent candidates

were allowed to perfect their filings at a later date than

primary candidates, the way would then be open for the

perpetration of some of the time-honored election tricks

which invariably confuse the voter and distort the

process. 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 by promoting an independent can-

didate 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 candi-

dates either to confuse their opponents or to preserve

their ability to siphon off the votes when the conting-

ency cevelops. Nor are such schemes in Maryland

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

vu. Reeves, 275 Md. 599 (1975), which involved the

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

same” candidate.

In addition, the Section 7-l(e) filing deadline pro-

motes voter and candidate knowledge of all general

election candidates at approximately the same time and

prevents both independent and primary candidates

from obtaining an unfair advantage over each other.

Unlike this Court in American Party of Texas v.

White, supra at 787 n. 18, the lower court failed to in-

clude in the seventy day period between the date an

independent candidate must file his signatures and the

date of the primary necessary time for administrative

and court challenges to the signature verification

process. Maryland l..w requires petition signatures to be

validated by the local boards within 35 days of their

submission. (April 12 in the present case). For petition

gathering campaigns for statewide office, results are

forwarded to the State Administrative Board of Elec-

tion Laws which determines the sufficiency of the

signatures and notifies the candidate (April 15).

Appellee here filed suit on April 30, two weeks following

that determination. After expedited consideration by a

three-judge panel, it was not until the eve of the May 18

primary that Bradley’s likely status as a qualified

independent candidate for U.S. Senate was determined.

The point of this litany is clear: under the present

Maryland scheme all parties to the electoral process

eS ee ee ee ee a |

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= eee ee me tome

will know the identity of qualified independents- at

approximately the same time the primary winner is

determined. The three-judge panel in Auerbach v.

Mandel, supra, expressly noted this value when it

sustained the Section 7-l(e) filing deadline in 1972:

“. . . [V]iewed in perspective of its reasons, Merch

6th in itself is not an unreasonable time when you

consider the , need and the State’s legitimate

interest ... in requiring... that all candidates

... be known at the same time.” Jurisdictional

Statement, Auerbach v. Mandel at 29.

Moreover, the uniform pre-primary filing deadline,

examined in this light, prevents either independents or

primary candidates from gaining the upper hand.

Under Maryland’s scheme, both candidates for the

general election ballot will have the same campaign

period. If an independent candidate is allowed to

submit his signatures on the date of the primary (as the

lower court held) and wait 35 days for signature

verification) plus an uncertain period of time for

administrative and legal challenges to become an

fficial candidate, his party opponents in the general

election may have made such headway in campaigning

and fund-gathering that the prospects of a serious race

by the independent will have evaporated.'* Conversely,

under the lower court’s dual deadline system, a party

candidate who has spent the majority of his campaign

funds in a tough primary may receive the shock of his

life to learn that halfway through his general election

campaign he now has another serious opponent, viz. an

independent candidate.'’? And nothing in the lower

‘* Due to his late campai

62,750 votes in the oe ae lie ge ees

obtained 68,341 signatures during hi titi i

which 53,567 were valid. a

17 Because of the possibility of administrative and legal

challenges with respect to signature validation and independ-

court’s proffered election scheme, i.e., uniform filing of

certificates of candidacies but waiting until the primary

to demand the necessary signatures, will cure these

problems; this is because no one, be it voter, party-

candidate, newsman or contributor, is going to take an

independent seriously until he is an official, qualified

general election candidate.'*

In addition to these significant interests served by

Maryland’s uniform pre-primary filing deadline, Sec-

tion 7-l(e) helps foster public discussion of issues

among all candidates when voter interest is at its peak,

viz. the primary campaign. Although this Court has

recognized that “public discussion [by candidates] is a

political duty”, Buckley v. Valeo, supra, 46 L. Ed. 2d at

707, Appellee Bradley, who had instructed his signature

gatherers to avoid discussing issues during the petition

gathering campaign, generally declined speaking

invitations which flowed in during the primary cam-

paign. Transcript of Proceedings at 78. He declined to

take advantage of these offers of public attention which

could have advanced his cause in the general election

and which could have afforded him the unique

opportunity of attacking without retort his likely

general election opponents who were preoccupied with

their primary battle. Most importantly, he declined to

shed any light for the primary voters (who are also the

general election voters) on the issues debated during the

campaign. This opportunity and obligation stemmed

from Maryland’s uniform filing deadline, which stimu-

lated interest in Bradley as a candidate.

ent ballot access, election officials may face greater adminis-

trative difficulties with a later filing deadline for independ-

ents.

'* See Appellee Bradley’s testimony that contributors were

holding back on committing campaign funds to him until he

was a qualified candidate (A. 24A).

ten ee oo ese

. Finally, Marylana’s uniform pre-primary filing dead-

line promotes all of these interests while still preserving

the right of State voters to be heard at an early point in

a Presidential election year with respect to their choice

for Presidential nominees. As indicated earlier, a

Presidential election year places greater burdens on all

Maryland candidates than off-year elections. Not only

is the filing date earlier, but all candidates must

campaign for a longer period of time. And voters are

faced with a greater prospect of confusion as elections,

both national and local, become a year-long preoccupa-

tion. But the State quite understandably has deter-

mined 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

forego this role for its voters or abandon the legitimate

interests asserted in behalf of the Section 7-1(e) filing

deadline.

In short, the State contends that whether viewed

separately or in conjunction, these interests are more

than sufficient to support whatever burdens or discrimi-

nation may be said to arise from Maryland’s uniform

filing deadline.

HICKS v. MIRANDA DID NOT RELIEVE THE DISTRICT COURT

OF ITS OBLIGATION TO DISTINGUISH AND HARMONIZE

PRIOR SUMMARY AFFIRMANCES AND WRITTEN DECISIONS

OF THIS COURT UPHOLDING THE CONSTITUTIONALITY OF

STATUTES SUCH AS SECTION 7-1(e) 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 the lower

court guessed correctly when it held that the summary

affirmance in Salera v. Tucker, supra, in effect

overruled the five summary affirmances and two

written decisions of this Court which support the

constitutionality of Maryland’s uniform filing deadline

for candidates. On two occasions the court below opined

on the effect to be given particular summary affirm-

ances of this Court. The three-judge panel noted that the

issue of the constitutionality of the Section 7-1(e) filing

deadline had been raised in this Court in Auerbach but

said “we do not believe that the Supreme Court decided

it”. (AJS. p. lla). Yet, despite the fact that the issue as

framed for this Court in Salera wove together the

constitutionality of both the signature gathering period

and filing deadline for independent candidates in

Pennsylvania,'? the lower court here said “we are

confident that Salera did decide the issue before us’,

(AJS. 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 distinguish the

substantial amount of authority in support of the

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

court declared that the summary affirmance in Salera

had overruled the following written and summary

decisions of this Court: 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) (upholding

'* According to Pennsylvania’s Jurisdictional Statement in

Salera, the relevant question was framed: “Whether the

United States District Court for the Easten District of

Pennsyivania, sitting as a three-judge court pursuant to 23

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).

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 requirement); and

Williams v. Rhodes, 393 U.S. 23 (1968) (where the filing

deadline later sustained in Sweetenham was strack

down but only in conjunction with restrictive provisions

of Ohio law which made it virtually impossible for a

nonparty candidate to obtain ballot access).2° Appar-

ently 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 consideration to a ballot

access case.

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

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

precedential value of the above decisions. However, it is

not even clear that Hicks would apply in this case. In

Hicks this Court said that a lower federal court erred in

disregarding a prior state court case appealed to the

“” In addition, the lower i

Maryland People’s Party =n "Wood ». Plan gy te

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).

Supreme Court and dismissed “for want of a substan-

tial federal question”. The present case, however,

involves a summary affirmance, not dismissal for want

of a substantial federal question, and this Court on a

number of occasions has stated that the former are less

weighty decisions. In Gibson v. Berryhill, 411 U.S. 564,

576 (1973), this Court conceded that summary affirman-

ces are “somewhat opaque”. And in Fusari v. Steinberg,

419 U.S. 379, 391-92 (1975), Chief Justice Burger in his

concurring opinion stated:

“When we summarily affirm without opinion,

. . we affirm the judgment but not necessarily the

reasoning by which it was reached. An unexpli-

cated summary affirmance settles the issues for the

parties, and is not to be read as a renunciation by

this Court of doctrines previously announced in our

opinions after full argument.”

Cf. Edelman v. Jordan, 415 U.S. 651, 671 (1974).

In addition to applying to summary dismissals rather

than summary affirmances, Hicks required a federal

_ court considering a constitutional challenge to a statute

to accord precedential effect to a summary disposition

relative to the exact same statute. Thus if the lower

court in Bradley was going to follow in its entirety its

mistaken view of Hicks, it would have been obligated to

feel itself bound by Auerbach which involved the

constitutionality of Section 7-l(e) rather than Salera

which dealt with a different Pennsylvania law.

However, even assuming Hicks applies fully to

summary affirmances, it still would mean only that a

summary affirmance by the S -reme Court is a

decision on the merits in a case ari: that lower courts

are not free to disregard such decisions. It 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 affirmance 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. Even in Hicks, this Court

indicated that lower courts should “ascertain the reach

and content of summary actions.” 422 U.S. at 345 n. 14.

One thoughtful commentator on Hicks v. Miranda

phas said that pursuant to this duty, lower courts must

“

. . analyze carefully the grounds upon which the

statute was upheld in the prior appeal, including,

for example, the precise wording of the statute, the

constitutional provisions relied upon, the party

who asserted the claim in the prior appeal and

most importantly, the precise facts upon which the

statute was upheld”. Note: The Precedential

Weight of a Dismissal by the Supreme Court for

Want of a Substantial Federal Question: Some

Implications of Hicks v. Miranda, 76 Columbia L.

R. 508, 529 (1976).

In disregard of these principles, 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 signa-

tures 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 proclaim such a feature as

per se unburdensome under all circumstances, a course

21 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.

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 requirement” 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 petition law

renders the scheme challenged by Bradley infinitely

less burdensome than the Pennsylvania statute. More-

over, even the lower court’s opinion contained re-

peated 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 re-

spects. It involved a 218-day 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 important, 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. The Salera court even determined that

the bad weather petition circulators must face when

gathering signatures at an early date was impurtant in

gauging burdensomeness. 399 F. Supp. at 1266. Evi-

OT rem

dence before the Bradley court here indicated that in

1976-76 Maryland had one of its mildest winters in

history.??

In short, if the lower court wanted to avoid its

draconian reversal of this Court’s ballot access cases, it

coulu have readily and reasonably distinguished Salera

on a number of bases. Moreover, it could have and

should have relied on the principles of written decisions

of the Supreme Court to resolve the result reached in

Salera with a conclusion that Section 7-l(e) is not

violative of Bradley’s constitutional rights.

22 Unlike the situation in Salera, the Maryland statute was

challenged by an independent candidate who demonstrated

that he was able to acquire a sufficient number of signatures

by the filing deadline, but was kept off the ballot because the

inefficiency of his campaign resulted in thousands of

invalidated signatures.

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 deadline, and the Appel-

lants were entitled to judgment as a matter of law.

Accordingly, the decision of the District Court must be

reversed and judgment entered for Appellants.

Respectfully submitted,

FRANCIS B. BURCH,

Attorney General

of Maryland,

GeorGE A. NILSON,

Deputy Attorney General,

RoBert A. ZARNOCH,

Assistant Attorney General,

1400 One South Calvert Bidg.,

Baltimore, Maryland 21202,

Attorneys for Appellants.

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