Brief for Appellee — Mandel v. Bradley

15255-12-76

Supreme ‘ourt, U. $,

Fli. ED

DEC <9 1978

| MICHAEL ROD K, JR., CLERK |

_—_— =

ee eet

IN THE .«

Supreme Court of the United States

OcToBER TERM, 1976

No. 76-128

Marvin MANDEL, Governor of Maryland, ET AL.,

Appellants,

v.

Bruce BRADLEY, ET AL., Appellees

On Appeal from the United States District Court

for the District of Maryland

BRIEF FOR APPELLEES

Jon T. Brown

JAMES D. PEMBROKE

1700 Pennsylvania Avenue, NW

Washington, D.C. 20006

Attorneys for Appellees

Press or Byron S. ApamMs Parntine, Inc., Wasuineton, D. C.

ancl i. Tar. ee

INDEX

Page

SS OOD oie od cles iewesedouseccesteuusde 1

I ND ic occas beds ecadaceesvensaents 2

Ge SOUS igs 3c cnnedeackUeuncens eases 11

Argument:

I. Section 7-l(e) of the Maryland Election Code

Violates the First and Fourteenth Amendment

Rights of Independent Candidates and Their

Voter-Supporters—

A.

B.

C.

ID).

Applicable Primcipies .....ccccccccccccses

The Early Filing Deadline for Independent

Candidates’ Petitions Places a Substantial

Burden on the Ability of Independent Can-

didates to Gain Access to the Ballot .......

The State Has Established No Compelling or

Vital State Interests Justifying the Burdens

Placed Upon the Exercise of Plaintiffs’

EE do 0 4 SUR OWKEN - COGds 044d whee een

The State Has Failed To Establish that the

Remote Filing Deadline Is the Least Restrie-

tive Alternative Available To Protect Any

Valid or Compelling State Interest ........

Il. The Bradley District Court Properly Applied

the Principles Enumerated in Hicks v. Miranda

in Relying Upon a Distriet Court Opinion which

Had Been Summarily Affirmed by the Supreme

ED See cewccbawendecduubacedesucessatvecc:

a ik a Se ctr i tk a tt

15

26

34

il

TABLE OF CITATIONS

Page

CAsEs:

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

1, | Pr ep rer ry eT eee 14, 27

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

3, 1972), aff’d. 409 U.S. 808 (1972).......31, 48, 44, 45

Brady v. State Bar of California, 533 F.2d 502 (9th

Eh NER i Dee eaes tea ceewepnacdbatae ce teee 3!

Buckley v. Valeo, 424 U.S. 1 (1976) ............. 11, 14, 26

sullock v. Carter, — of ge: Fs. Se 27

Dunn v. Blumstein, 405 U.S. 330 (1972) ........ 27, 30, 35

Elrod v. Burns, — U.S. —, 96 S.Ct. 2673 (1976)... , 14,

26, 35

Geiger v. Jenkins, 401 U.S. 985 (1971) .............. 42

Gibson v. Berrvhill, 411 U.S. 564 (1973) ........... 42,43

Hicks v. Miranda, 422 U.S. 382 (1975)....... 11, 12, 38, 39,

40, 43, 46

Ingraham v. Wright, 525 F.2d 909 (5th Cir.), cert.

granted on other grounds, — U.S. —, 48 L.Ed.2d

ee Ce BE i 8 ek Co ea ua diab Cece d ah 39

Jenness vy. Fortson, 403 U.S. 431 (1971) ............ 22, 23

Kusper v. Pontikes, EO We CONES ovibic ce vecoce% 11, 35

Lubin v. Panish, 415 U.S. 709 (1974) .............. D5, 26

Maryland People’s Party v. Mandel, Civ. No. 72-865-KK

(DD. Mad., Sept. 5, 1972), aff’d. 410 U.S. 901 (1973)

45, 44, 45

NAACP v. Button, 371 U.S. 415 (1963) ............. 13

Ohio ex rel. Eaton v. Price, 360 U.S. 246 (1959) ..... 39

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

aff’d. 424 U.S. 959 (1976)............ 10, 12, 38, 39, 40,

41, 42, 43, 45, 46

Shelton v. Tucker, 364 U.S. 479 (1960) ............. 35

Storer v. Brown, 415 U.S. 724 (1974) ........... 14, 20, 40

Thonen v. Jenkins, 517 F.2d 3 (ee | 39

United States v. Robel, 389 U.S. 258 (1967) ......... 14

Usery v. Turner Elkhorn Mining Co., — U.S. —, 49

Pe ee Be | ee rer 39

Williams v. Rhodes, 393 U.S. 23 (1968) ...... 13, 22, 23, 24

Wood v. Putterman, 316 F. mane | 646 (D. Md.), aff’d.

Ge Was CU GUE ua 6K 0e cd: clawewenseces 43, 44, 45

Table of Citations Continued iii

Page

CONSTITUTIONAL PROVISIONS AND STATUTES:

Constitution of the United States:

a el, rs , 9, 11, 13, 46

Fourteenth Amendment ...........++2 2,5, 11, 13, 46

Annotated Code of Maryland (1976 Replacement Vol-

ume) Article 33—

i Ng gy candi ducnksdacteekeconenewet 3,13

EE A re rere

RN EE a duck icccvescadackenseedoddenens 3

Section 7-1 PA eU eee eReha tense seein ee 3,4

Beatin T-04S) ino ccc wccnsessacusessecevens passim

Section 7-1(1) (1976 Cumm. Supp.) .........-- 3

a err errr 2 Tre es 28

eee Eee... deeccas cece seueressasseernen 27

ane

a ratalaadag

IN THE

Supreme Court of the United States

OcToBER TERM, 1976

— No, 76-128

Marvin MAnpen, Governor of Maryland, ET AL.,

Appellants,

Ve

Bruce BRADLEY, ET AL., Appellees

On Appeal from the United States District Court

for the District of Maryland

BRIEF FOR APPELLEES

QUESTION PRESENTED

Whether Maryland Code (1976 Replacement Vol-

ume), Article 33, See. 7-1(e)' deprives the appellee

1Qn March 16, 1976, § 7-1(e), was amended. The deadline for

filing of certificates of candidacy and petitions now appears at

§7-1(i). The substance of the provision was not changed, how-

ever, and pursuant to § 7-1(i), the filing deadline for petitions in

1976 would have been March 8, 1976, the same as under former

$7-1(e). The Appellants, on Brief, failed to note this change

and referred throughout their Brief to the statutory provision in

question as §7-l(e). For the convenience of the Court and to

avoid confusion, the appellees in this Brief will refer to the chal-

‘ lenged section as § 7-1(e). However, appellees desire to make

clear that the filing deadlines which are the subject of this litiga-

tion now appear at §7-1(i) of Article 33, not § 7-1(e).

2

candidate and voters of rights guaranteed to them by

the First and Fourteenth Amendments to the United

States Constitution in that this statute required inde-

pendent candidates for statewide office to file petitions

containing the signatures of 51,155 registered voters

of Maryland with the county election boards on March

8, 1976, which date is 70 days prior to the primary

election in Maryland and which is 239 days prior to

the general election, in order for the independent

candidate's name to appear on the ballot in the gen-

eral eleetion to be held in November, 1976.

STATEMENT OF THE CASE

This case involves the difficulties encountered by

independent candidates in the State of Maryland who

seek to have their names placed on the general eleetion

ballot by satisfying the requirements of the nomina-

tion by petition process, as provided in the Maryland

Election Code.

Bruce Bradley, one of the plaintiffs in the District

Court, is a voter in the State of Maryland and is regis-

tered as an independent. In the Spring of 1975, Mr.

Bradley decided to run as an independent eandidate

for the United States Senate seat which was then held

by Honorable.J. Glenn Beall. (Tr. 64)2

In order for the name of an independent candidate

to appear on the general election ballot, the independent

candidate must comply with the requirements of the

nomination by petition process. The independent

candidate does not take part in the primary election

ts References to the Appendix to the Jurisdictional Statement

will be cited as ““AJS.’" References to the Appendix which accom-

panied Appellants’ Brief will be cited as ‘‘A.’’ References to the

Transcript of the Hearing of May 12, 1976 will be cited as “Tr.”

rn

3

process. The burdens imposed by the nomination by

petition process are found at Section 7-1 of the Mary-

land Election Code.* The net effect of this provision

was that in 1976, an independent candidate for state-

wide office was required to file no later ‘han March 8,

1976 * his or her certifieate of candidacy to which had

been appended the signatures of 51,155 registered

voters of the State of Maryland. If the independent

candidate sueceeded in performing this task, that

candidate’s name would appear on the ballot in Novem-

ber, 1976. If the independent candidate did not carry

this burden, the name would not appear on the Novem-

ber ballot.

A partisan candidate who sought nomination by

means of the primary election process for the 1976

election must also have filed a certificate of candidacy

on March 8, 1976. However, the partisan candidate

was not required to append any signatures to his

certificate of candidacy. The mere filing of the parti-

san eandidate’s certificate of candidacy guaranteed the

partisan candidate a place on the primary election

ballot. §§ 4A-1, 4A-3.

® Maryland Code (1976 Repl. Vol., 1976 Cum. Supp.) Art. 33,

§$ 7-1. AJS. 19a-22a. Unless otherwise noted, all references to

statutory sections of the Maryland Code are references to Article

33, the Maryland Election Code.

4 This date is provided by statute and is required to be seventy

(70) days prior to the day on which the primary election is held.

$ 7-1(e). The date of the primary election in Maryland in 1976

was May 18, 1976. The date for the primary election is set by

statute as the third Tuesday in May in presidential election years.

§ 5-2. In all other years, the primary election date is the second

Tuesday after the first Monday in September. 7d. Thus, in non-

presidential election years, the dates for filing of certificates of

candidacy fall in July,

4

As an independent candidate, Mr. Bradley com-

menced in the Spring and Summer of 1975 to organize

his campaign and signature gathering drive. (A. 16A,

20A). The signature gathering drive was hampered

substantially by the difficulties of maintaining a_poli-

tically oriented activity in the Fall and Winter of

1975-76, a time far in advance of the high publie

interest in national and statewide polities. The prob-

lems included diffienlties maintaining a campaign

staff (A. 204A), diffieulties in developing coverage of

the campaign by the printed and electronic media (A.

21A) and difficulties in arranging personal appear-

ances fer candidate Bradley (A. 27A-30A).

Despite these diffieulties, Mr. Bradley tendered his

certificate of candidacy to the State Administrative

Board of Election Laws on March 8, 1976 with 53,239

signatures appended to the certificate. However,

subsequent to the signature verification process, the

State Administrative Board of Eleetion Laws notified

Mr. Bradley that only 42,049 ‘‘valid’’ signatures ® had

heen appended to the certificate.

Since that number fell short of the 51,155 necessary

for nomination, the Administrator of Election Laws

stated on April 15, 1976 that Mr. Bradley’s name

would not appear on the ballot in the November

general election.

* § 7-1 specifies requirements which must be satisfied in order

for a signature to be deemed ‘‘valid’’ for the petition process.

These requirements include, inter alia, that the registered voter

print his name beneath his signature, that a resident must sign

only that petition sheet bearing the name of that voter’s county

of residence and that each petition sheet be notarized by a notary

public who knows the signator to be a registered voter of the

designated county.

5

Mr. Bradley commenced negotiations with various

representatives of the State in order to reach an ac-

commodation concerning Mr. Bradley’s candidacy and

place on the ballot. Since such an accommodation could

not be reached, Mr. Bradley and other registered

voters of the State of Maryland instituted suit in the

Federal District Court for the District of Maryland

on April 30, 1976. Plaintiffs below claimed, inter alia,

that the remote March 8 dead!ine for the filing of the

certificate of candidacy and the required 51,155 signa-

tures, falling 70 days before the primary election and

239 days before the general election, placed an unrea-

sonably heavy burden on Bradley to have his name

placed on the ballot and thus violated the Plaintiffs’

First and Fourteenth Amendment rights. (A. 35A-

14A).

On April 30, the day suit was filed, an Order was

entered with the consent of all parties which permitted

Bradley to collect additional signatures and to file the

same with the Defendants until May 18, 1976. How-

ever, the Order did not require the Defendants to take

any action with respect to the signatures until further

Order of the Court. CA, 14A-15A).

A three judge court was duly convened on May 12,

1976 and the matter came on for hearing on the motion

for preliminary injunction. At the hearing, evidence

was received from all parties.

Plaintiffs submitted affidavit testimony, subject to

cross-examination, which established the burdensome

nature of the early filing deadline.

Plaintiff John F. Faleoner was campaign mauager

for the Bradley campaign. Mr. Falconer testified that

his primary initial duty in the campaign was to orga-

6

nize and operate a successful signature gathering

drive. (A. 20A). In this regard, Mr. Falconer testi-

fied that it was difficult to recruit volunteers for the

campaign since few persons could feel the immediacy

of collecting signatures in the Fall and Winter of 1975

for an election to be held in November, 1976. (A.

20A). During the petition gathering period, the cam-

paign receruitec and lost three petition drive chair-

persons, two schedulers and five county chairpersons.

The common denominators for the loss of these persons

were, first, the frustrations of expending a large effort

in a politieal campaign during a time period remote

from the actual election, and, second, the pressures

* resulting from conducting a petition drive in adverse

winter weather conditions. The lack of media atten-

tion during the signature drive further demoralized

the campaign staff (A, 20A-21A). The campaign

made numerous efforts to attract coverage from both

the printed and electronic media. The normal re-

spense to these requests was that the Bradley cam-

paign would be covered along with the primary elee-

tion campaign—a time which occurred after the filing

deadline for petitions. In Mr. Faleoner’s estimation,

the lack of media coverage severely hampered the

eampaign in three ways: 1) damage to fundraising

efforts: 2) demoralization of campaign staff; and 3)

lack of voter knowledge of Mr. Bradley and his cam-

paign. (A. 21A). With regard to fundraising, it

should be noted that at the time suit was filed, the 45

day period following the March 8 filing deadline had

heen the most productive period for fundraising pur-

poses. (A. 224),

The essence of Mr. Faleoner’s testimony was that

the early filing deadline was damaging to the eampaign

Se Nemec Rate tee Meat

7

organization, nearly eliminated the amount of media

coverage the campaign would have received if it were

conducted later in the year, and diminished the cam-

paign contributions which were needed to conduct a

forceful, full-scale petition drive.

Susan Madison was one of the schedulers for the

Bradley campaign. She filed an affidavit in support

of the motion for temporary restraining order and

preliminary injunction (A. 27A-30A) and was a wit-

ness at the hearing below. Ms. Madison testified that

her duties included arranging for Mr. Bradley’s publie

appearances. She testified that extreme problems

were encountered in seheduling the candidate for

publie appearances before civic and other groups in

the Winter of 1975-76. Ms. Madison indicated that she

explained the petition process to her target groups aud

that she pointed out the time frame in which an in-

dependent candidate must operate in Maryland, De-

spite the fact that the time during which Mr. Bradley

needed extensive exposure to the public was the period

preceding the March 8 filing deadline, the vast major-

ity of groups contacted indieated that they would

allow Mr. Bradley to speak to the group only during

their previously scheduled political meetings and

‘‘candidates’ nights’? to be held during the months of

March, April and May. 1976, Accordingly, Mr. Brad-

ley would be allowed to appear before these groups

only after the filing deadline for nominating peti-

tions had passed. Typical of the groups contacted by

Ms. Madison were women’s ¢lubs, community centers,

chapters of the League of Women Voters, senior citi-

zens groups, Chambers of commerce and student asso-

cjations. Ms. Madison further testified that after the

March 8 deadline, as the primary election campaigns

8

were increasing in tempo, many groups requested that

Mr. Bradley make appearances before them. These ap-

pearances of course would in no way aid the thereto-

fore completed petition drive.

Plaintiff Bradley filed an affidavit below (A. 15A-

19A) and was a witness at the hearing. Mr. Bradley

stated that the petition drive which must be concluded

239 days before the general election imposed severe

hardship on prespective Independent candidates. Mr.

Bradley testified that the Fall of 1975 was a crucial

period for the independent candidate's petition drive

since during that time, the petition drive organization

must have been established and the petition drive itself

must have been foreefully commenced. However, in

the Fall of 1975, none of the four major daily news-

papers in Maryland had even assigned correspondents

to cover the United States Senate race in Maryland. No

journalistic machinery was in place to cover the devel-

epment of the Bradley campaign or petition drive.

The candidate and his platform remained relatively

mnknown prior to the March 8, 1976 deadline. Bradley

further testified that the March 8, 1976 filing deadline

imposed on the campaign an onerous time period for

an independent to commence active campaign work

since it required that finances be raised and\a cam-

paign organization developed in excess of one and one-

half years prior to the general election.

The State presented two witnesses at the May 12,

1976 hearing. Professor Richard Smolka testified con-

cerning the content of Maryland’s election laws and

his opinions concerning the burdens experienced by an

independent candidate in Marvland. (A, 32A-36A).

That testimony is summarized in Appellants’ Brief

“ae tne ese

oe

9

at 7-9.2. However, it should be noted that on voir dire,

Professor Smolka admitted that he had never per-

formed quantitative research on the relative ease of

gathering petitions at various stages prior to a primary

or general election and that he personally had never

collected any petitions, (A, 58A-59A.)

The State also presented as a witness Willard A.

Morris, State Administrator of Election Laws. He

testified concerning the history of Maryland’s inde-

pendent candidate procedure, the events relating to the

Bradley campaign s nomination by petition effort and

the ability of mdependent candidates to gain a place on

the ballot by means of the nomination by petition proe-

ess. (A, 236A-49A). Mr. Morris stated that independent

candidates had successfully gained ballot placement in

nou-presidential election years, ie., when the filing

deadline is in July, and that independent candidates

had achieved ballot placement for offices of less than

statewide authority in presidential election years. How-

ever, on c¢ross-examination, Mr. Morris admitted that

no candidate for statewide office had ever gained ballot

placement using the nomination by petition process in

a presidential election year when the filing deadline

for nominating petitions falls in early Mareh for a

general election to be held in November. (A. 63A.)

Mr. Morris further admitted that one other candi-

date for statewide office failed to append a sufficient

number of signatures to petitions required to be filed

on March 8, 1976 to guarantee a ballot position in

November. That candidate was former Senator

Kugene McCarthy.

® References to Appellants’ Brief filed with this Court will be

cited as ‘‘Br.”’

10

At the close of the May 12, 1976 hearing, the case

was taken under submission.

On May 17, 1976, the Opinion of the District Court

issued, (AJS. la-13a). The decision will be diseussed

below at length. It is sufficient here to note that: (1)

the Distriet Court coneluded that the March 8, 1976

termination date substantially burdened the ability of

Mr. Bradley to gain access to the ballot (AJS, 6a) ; (2)

no compelling state iiterest justified that burden (AJS.

ba-Da); (3) that the instant case was indistinguishable

froma three judge distriet court case, Salera vy. Tucker?

and that the Bradley Distriet Court was bound by the

Supreme Court’s summary affirmance of Salera vy.

Tucher.

On June 2, 1976. the Order of the Distriet Court is-

sued which declared that §7-1(e) denied the constitu-

tional rights of Mr. Bradley to gain a place on the bal-

lot and denied the constituttonal rights of the other

plaintiffs to vote for Mr. Bradley as the candidate of

their choice. The Distriet Court afforded Mr. Bradley

additional time until July 13, 1976 to seek additional

signatures and ordercd that the name of Bruee Bradley

he placed on the ballet for the general election to be

held in November, 1976 if by July 13, 1976, Mr. Bradley

collected additional valid signatures to cause his total

to exceed 51,155 signatures,

Mr. Bradley collected the needed additional signa-

tures and, by letter of July 30, 1976, the State Adminis-

trative Board of Election Laws notified Mr. Bradley

that his name would appear on the ballot as an inde-

pendent candidate for the United States Senate.

—_————_ -—

7399 F.Supp. 1258 (E.D. Pa. 1975) aff’d. 424 U.S. 959 (1976).

od sooner a

11

The name of Bruce Bradley did appear on the ballot

in the November general election. Mr. Bradley was de-

feated in that election.

SUMMARY OF ARGUMENT

I.

Section 7-1(e) of the Maryland Election Code vio-

lates the First and Fourteenth Amendment rights of

independent candidates and their voter-supporters im

the State of Maryland. Dased upon the evidence pres-

ente 1, the Distriet Court properly determined that the

early filing requirements placed a substantial burden

on the ability of independent candidates to gain access

to the ballot. That burden is demonstrated both by the

experience of the Bradley Campaign and by the his-

tory of independent candidacies in Maryland. The

Distriet Court properly considered and rejected as in-

sufficient the purported compelling state interests prof-

fered by the State in support of the early filing date.

Burdens on the full exercise of constitutional rights

must fall unless those burdens are justified by a com-

pelling state interest and unless those burdens are the

least restrictive burdens necessary to protect that com-

pelling state interest. See e.g., Elrod vy. Burns, — U.S.

—, 96 S.Ct. 2673 (1976); Buckley v. Valeo, 424 U.S.

1 (1976); Nusper v. Poutihes, 414 U.S. 51 (1973). The

failure of the State to establish a compelling state in-

terest justifving the carly filing deadline required the

District Court to declare Section 7-1(e) unconstitution-

al.

II.

In its decision, the District Court properly applied

the principles cnumerated by this Court in Hicks vy.

Miranda, 422 U.S. 332 (1975). The Bradley District

12

Court was presented with a district court decision which

considered facts and legal issues similar to those pres-

ented in Bradley and which had been summarily af-

firmed by this Court. Salera vy. Tucker, 399 F. Supp.

1258 (h.D. Pa. 1975) aff'd, 424 U.S. 959 (1976). The

Bradley Distriet Court serutinized Salera to determine

if Salera was factually distinguishable. Only after full

scrutiny of Salera and on investigation of the issues

presented to this Court through Salera’s opinion and

jurisdictional statement did the Bradley Distriet Court

deem itself bound by Salera thus requiring Salera’s

application to the Bradley litigation.

Consequeutly, combined with its independent deter-

mination that the Marvland Code imposed constitution-

ally impermissible burdens upon independent eandi-

dates, the District Court’s application of Salera

through Hicks further serves to establish the correct-

ness of its decision.

ARGUMENT

I. SECTION 7-l(e) OF THE MARYLAND ELECTION CODE VIO-

LATES THE FIRST AND FOURTEENTH AMENDMENT RIGHTS

OF INDEPENDENT CANDIDATES AND THEIR VOTER-SUP-

PORTERS.

A. Applicable Principles.

Section 7-1(e) in the 1976 presidential election year

required that independent candidates for statewide of-

fice file on March 8, 1976, certilicates of candidacy to

which had been appended the signatures of 51,155 regis-

tered voters of the State of Maryland. If the independ-

ent candidate sueceeded in fulfilling this obligation,

that independent candidate’s name would appear on

the ballot for the general election held in November,

1976. If the independent failed to file a certificate with

ee ee ee]

A SAM et AN A 8 ORO oe emte + A

13

the required number of signatures appended, the in-

dependent candidate’s name would not appear on the

general election ballot.

Candidates who sought nomination for office as mem-

bers of an organized political party must also have filed

certificates of candidacy on or before March 8, 1976, in

order for their names to appcar on the primary elee-

tion ballot. However, these candidates need not have

appended any signatures to their certificates. The mere

filing of a certificate of candidacy guaranteed that the

partisan candidate’s name would appear on the primary

election ballot. See §§ 4A-1, 4A-3.

The statutory scheme suggests two areas of consti-

tutional infirmity in the election process as it relates to

independent candidates. First, the statutory scheme

may be burdensome on the First Amendment rights of

independent candidates in light of the substantial difii-

culties which face independents in qualifving for a bal-

lot position. The right to vote for the candidate of

one’s choice derives from the right of association which

is protected from state infringement by the First

Amendment as applied to the States through the Four-

teenth Amendment. See, Williams v. Rhodes, 393 U.S,

23, 30 (1968); NAACP vy. Button, 371 U.S. 415, 450

(1963). Second, the statutory scheme is questionable

under the Fourteenth Amendment’s equal protection

tenets. The statutory scheme creates two classes, inde-

pendent candidates and candidates from established

political parties. The right considered is access to the

ballot. The burdens placed upon independent candi-

dates in achieving a ballot position in the general elee-

tion differ from those of candidates from established

parties.

14

The burdens imposed upou independent candidates

are to be subjected to ‘‘exacting serutiny’’ and can be

sustained only if they further a vital or compelling

governmental interest. See Buckley vy. Valeo, 424 U.S.

1, 58-59, 93-94 (1976); Storer y. Brown, 415 U.S. 724,

729-731 (1974); American Party of Teras v. White,

415 U.S. 767, 780-81 (1974).

Further, even if a compelling or vital state interest

is identified by the Siate, the means used by the State

to protect that interest must be carefully circumscribed

so as not to unnecessarily restrict a constitutionally

protected liberty. Sec, e.g., Elrod v. Burns, — U.S. a

96 S.Ct. 2675, 2684-85 (1976) : Buckley v. Valeo, supra;

United States vy. Robel, 389 U.S, 258, 267 (1967).

Plaintiffs submit that the Distriet Court below prop-

erly utilized this traditional analysis of constitutional

issues, It made an independent judgment on the facts

presented that the early March 8 filing deadline sub-

stantially burdened Mr. Bradley's ability to gain access

to the ballot. The District Court fully examined and

properly rejected the purported compelling or vital

state interests proffered by the State. Finally, even

assuming arguciudo that the State had established a

compelling or vital interest in the independent eandi-

date scheme which required protection, the State has

totally failed to fulfill its affirmative obligation of es-

tablishing that the means chosen to protect that inter-

est imposed the least possible restrictions on the exer-

cise of constitutional rights.

be Ras *, b Atco ARDS Aaa A lila Rani ——e

She Ab Am Se Ot CR ain tS Oe Ait at AD en he Ltt et oe tein. Cette abe Aa Rs

15

B. The Early Filing Deadline for Independent Candidates’ Pe-

titions Places a Substantial Burden on the Ability of Inde-

pendent Candidates to Gain Access to the Ballot.

Both the evidence presented before the District Court

and an analysis of the histery of independe»t candi-

dacies in Maryland indicate that the early Mareh filing

deadline for independent candidates’ certificates and

supporting signatures severely impairs the ability of

independent candidates to gain access to the ballot.

The evidence presented by the Plaintiffs to the Dis-

trict Court on the issue of the burdensome nature of the

early filing derdline was primarily sponsored by three

witnesses, the candidete, Bruce Bradley; the Bradley

For Senate campaign manager, John Faleoner; and the

scheduler for Mr. Bradley, Susan Madison.

Their testimony established that the early filing dead-

line adversely affected the ability of the eandidate to

vain a position on the ballot in five primary ways dur-

ing the conduct of the petition drive:

1. There was an absence of coverage by the printed

and eleetronie me lia which caused the eandi-

date, his platform and his petition drive to re-

main relatively unnoticed.

bo

Extreme difficulties were experienced in sched-

uling the candidate for publie appearances.

3. The petition drive organization was forced to

operate in adverse weather conditions in a time

frame out of synchronization with high public

interest in political matters.

4. Campaign contributions were difficult to garner

in this remote time frame.

5. Difficulties arose in maintaining cohesion in the

campaign organization.

16

The testimony of Mr. Bradley (A. 17A) and Mr. Fal-

couer (A, 2LA) both referred to the absence of media

coverage of the campaign, the cause of that absence,

and the effect of the lack of media coverage on the eam-

paign and petition drive.

Mr. Faleoner indicated that the campaign had ex-

erted strenuous efforts to entice media coverage of the

petition drive. Hundreds of telephone calls were made

to various representatives of the media in an effort to

gain exposure for the campaign during the petition

drive. (A, 214A). However, the normal response to

those inquiries was that the Bradley campaign weuld

be covered during the primary election campaign. Of

course, the primary campaign oecurs after the filing

date for petitions; thus any media coverage at that

point would in no way aid the petition drive. All four

major daily newspapers serving the State of Maryland

were contacted concerning their coverage of the Brad-

ley petition drive; however, in the fall of 1975, none

of these publications had even assigned a correspond-

ent to cover the United States Senate race (A. 17A).

There was an absence of adequate journalistie ma-

chinery to cover the Bradley petition drive and cam-

paign due to the time frame in which the petition drive

was forced to operate. Because of this lack of media

coverage, prospective petition signers were unaware

of the Bradley campaign, the Bradley platform and

“a importantly, were unaware of the petition drive

itself.

On brief, the State belittles the arguments of the

Plaintiffs that the lack of media coverage severely im-

pacted the campaign. (Br. 26). However, Plaintiffs

respectfully submit that to deny the vital importance

17

of media coverage of a major political action in the

twentieth century is to deny reality.

Had the petition drive been conducted in a later time

frame coinciding with media interest in Maryland or

national polities, i.c., in the Spring or Summer of 1976,

the signature gathering effort would have been sub-

stantially less burdensome.

Susan Madison, the scheduler for Mr. Bradley’s

public appearances, testified concerning the difficulties

experienced by the campaign in arranging for publie

appearances for the candidate during the signature

gathering effort. (A. 27A-30A). Ms. Madison testi-

fied that she expended substantial efforts in attempt-

ing to arrange for public appearances for the candi-

date. These publie appearances were important in

several aspects. First, the candidate and his platform

could have gained valuable exposure. Second, the

petition drive effort could have been explained to the

group with the result that some of the persons in at-

tendance would have signed the petition. Third, ex-

posure through public appearances would have re-

sulted in an inerease in the number of volunteer staff

workers for the campaign and petition drive effort.

As a direct result of the early filing deadline, these

benefits did not acerue to the Bradley campaign effort.

Ms. Madison contacted numerous groups, including

but not limited to chapters of the League of Women

Voters, student groups, senior citizens groups, cham-

bers of commerce and institutions of higher learning.

The normal response of these groups was that they

would be pleased to allow Mr. Bradley to speak to the

group, but not before the months of March, April and

May, 1976. Mr. Bradley’s appearance would take

18

place on a “‘eandidates’ night”? or at a political forum

where all senatorial candidates could speak. The time

frame for the political gatherings wes during the pri-

mary election campaign. Thus, Mr. Bradley could

gain broad exposure to these influential groups only

after his petition drive had been completed. The re-

sources of these groups were as a practical matter

denied to Mr. Bradley in his petition drive effort by

the early filing deadline imposed by Maryland on inde-

pendent candidates,

Since the petition drive was terminated by the filing

of petitions on March 8, 1976, the major effort of the

petition drive must occur during the Fall and Winter

of 1975-76. It strains the obvious to state that gather-

ing petitions is not a pleasant task. This unpleasant-

ness is multiplied when the major petitioning effort

takes place in adverse weather conditions. As Cam-

paign Manager Falconer pointed out in his testimony,

during the winter months the number of persons in

public places is minimal. Further, it is a burden on

the potential signator to stop, listen to the petitioner,

and sign the petition. (A. 22A). The major efforts

for the collection of signatures for the Bradlev cam-

paign was thus required to take place in a time frame

remote from the primary or general election, when

political awareness was low and during adverse weather

conditions. (A,22A). Had the petition drive oceurred

late in the year during the Spring or Summer of 1976.

voter interest in the senatorial campaign would be

high, more voters would be available to the petitioners

in publie places and the physieal task of petitioning

would have been less onerous with the obvious result

SS ——

19

that more volunteer petitioners would have been avail-

able for longer periods of time.”

Testimony was also received that the remote time

frame impacted adversely upon campaign contribu-

tions. Mr. Falconer testified that the campaign ex-

perienced severe difficulties in meeting the current

expenses of the petition drive. Mr. Faleoner stated

that at least in part, the inability of the campaign to

raise sufficient money to fund the petition drive came

as a result of: (1) the time frame of the petition drive

which was remote from the primary and general elee-

tions; (2) the absence of media coverage of the peti-

tion which, as discussed earlier, is caused by the remote

time frame; (3) absence of political awareness of the

electorate in this remote time frame. (A, 21A). Evi-

denee of the impact on contributions of increased me-

dia coverage and political awareness is seen in the

increase in contributions received by the Bradley cam-

paign as the elections grew closer. (A. 22A). At the

time suit was filed, the forty-five day period following

the March 8 filing deadline had been the most produe-

tive fundraising period for the campaign. (A, 22A).

Finally, the remote filing ..cadline adversely affeeted

the campaign organization itself. During the petition

gathering period, the Bradley campaign recruited and

lost three petition chairpersons, two schedulers and

five county chairpersons. Campaign Manager Fal-

coner testified that the common denominator for the

loss of these persons was the demoralization of the

campaign staff. This demoralization resulted from the

8 It is of interest to note here that the Bradley campaign was

forced to employ people te gather signatures due to insufficient

volunteer petitioning support in the winter months. (A. 22A).

20

pressures of coordinating the petition drive during the

winter when weather conditions were bad and voter

interest was low, and from the frustration of expend-

ing great efforts during a time period when the media

devoted no time to the senatorial race, much less to the

Bradley campaign. (A. 20A).

Without question the problems set forth above would

have been eliminated or substantially ameliorated if

the petition drive could have been conducted during a

period contemporaneous with the primary and general

election activities.

Equally important, the actual experience of other

independent candidates in seeking ballot access through

the nomination by petition process is a fact which must

be considered in determining whether the statutory

scheme substantially burdens the constitutional rights

of independent candidates. Storer vy. Brown, 415 U.S

724, 742 (1974). An analysis of that experience indi-

cates that the early March filing deadline constitutes a

rerseas burden on Maryland independent eandi-

dates,

Willard A. Morris is the State Administrator of

Election Laws. He was a witness for the State before

the District Court below. In his Statement to the Dis-

trict Court (A. 36A-49A), Mr. Morris, inter alia, dis-

cussed the experience of independent eandidates in

Maryland. He appended to his Statement a list of all

independent candidates who have qualified for a place

on the Maryland general election ballot during the past

ten years, (A. 43A-49A). The following diseussion is

an interpretation of Mr. Morris’ Statement, attach-

ment and testimony.

_——e — --- EO

21

Because of a statutory revision in 1969 and 1970, the

presidential election year of 1968 was the last presi-

dential election year in which independent candidates

could file nominating petitions in the summer of the

election year. In 1968 those petitions were due on

July 27, 1958. (A. 41A). In 1972 and 1976, the filing

deadline for independents fell in March. Tn non-presi-

dential election years, i.e., 1970 and 1974, the date for

filing of nominating petitions fell in July.

An analysis of Mr. Morris’ Statement and attached

list indieates the following:

1. In 1968, with a July deadline, three independ-

ent andidates qualified for statewide office.

(A. 454).

In 1970, with a July deadline after imposition

of the new statutory scheme, no independent

candidates qualified.

bo

In 1972, with a March deadline, after imposi-

tion of the new statutory scheme, no independ-

ent candidates qualified.

4. In 1974, with a July deadline, after imposition

of the new statutory scheme, eight candidates

qualified, though none qualified for statewide

office. (A. 43A-44A).

In 1976, with a March deadline, no candidate for

statewide office® qualified for a ballot position. In

addition to Mr. Bradley’s attempt, former Senator

®*Two candidates did qualify for ballot position for offices of

less than statewide authority in 1976. One of those candidates

needed 3,864 signatures to qualify. The other needed 8.361 sig-

natures. (A. 61A). Independents for statewide office needed

51,155 signatures to qualify.

Re

29

Eugene McCarthy attempted and failed in Maryland

in 1976 to gain a ballot position for a statewide office.

It is thus apparent that no independent candidate

for statewide office has ever qualified for a ballot posi-

tion when the filing deadline fell in March.

On the above summarized testimony which was pre-

sented to the District Court subject to cross-examina-

tion, the Distriet Court found that ‘‘the March 8 ter-

mination 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 bal-

lot... .7? (ASS. 6a). The Supreme Court has not

recently spoken in a definitive full opinion on the eon-

stitutionality of various deadlines for the filing of

hominating petitions by independent candidates.

However, some opinions of the Court have indicated

that early filing deadlines impose a substantial burden

on the exercise of constitutional rights and thus are

constitutionally suspect.

The first indication is found in the interplay of the

Court's opinions in Williams vy. Rhodes" and Jenness

v. Fortson.. In Jenness, a statutory scheme of the

State of Georgia which regulated independent eandi-

dacies was considered by this Court. In Georgia, ean-

didates who did not enter and win a political party’s

primary election were required to file nominating peti-

tions on the second Wednesday in June preceeding the

November general election. 403 U.S. at 432. This

Court upheld as constitutional that June filing dead-

line. Tlowever, in the discussion of the Georgia statu-

tory scheme, this Court compared the filing deadline

393 US. 23 (1968).

403 US. 431 (1971).

So nena I

a

——

23

burdens of the Georgia statute in Jenness with those

of the Ohio statute in Williams, stating that, ‘‘ Unlike

Ohio, Georgia does not fix an unreasonably early filing

deadline for candidates not endorsed by established

parties.” 403 U.S. at 438 (emphasis added). An

examination of Williams shows that the filing dead-

line in Ohio—which had heen referred to as ‘unrea-

sonably early’? by this Court—fell on February 7, 1968.

Williams v. Rhodes, 393 U.S. at 26-27. Plaintiffs sub-

mit that the Maryland filing deadline of March 8, which

falls only one month after the ‘unreasonably early”’

deadline in Williams, is equally unreasonable and

should be rejected by this Court.

Williams also contains the second indication by this

Court that unreasonably early filing deadlines are

constitutionally infirm. In Williams, Ohio imposed

a requirement that third parties have an organized

party structure and conduct primaries in choosing

their candidate. 393 U.S. at 25 & n.1. Ohio argued

that only through the primary election process can

the third party discern its most attractive candidate.

Id. at 32-33. This Court rejected Ohio’s arguments in

the following language:

The State also argues that its requirement of a

party structure and an organized primary insures

that those who disagree with the major parties and

their policies ‘‘will be given a choice of leadership

as well as issues’’ since any leader who attempts

to capitalize on the disaffection of such a group is

forced to submit to a primary in which other, pos-

sibly more attractive, leaders can raise the same

issues and compete for the allegiance of the dis-

affected group. But while this goal may be desir-

able, Ohio’s system cannot achieve it. Since the

principal policies of the major parties change to

24

some extent from vear to vear, and sinee the iden-

tity of the likely major party nominees may not

be known until shortly before the election, this

disaffected **group’’ will rarely if ever be a co-

hesive or identifiable group until a few months

hefore the election. Thus, Ohio’s burdensome

procedures, requiring extensive organization and

other election activities by a very early date, oper-

ate to prevent such a group from ever getting on

the ballot and the Ohio system thus denies the

“disaffected”? not only a choice of leadership but

a choice on the issues as well.

Td. at 32-33.

The March filing deadline for independent eandi-

dacies in Maryland is unreasonably burdensome in a

similar fashion. Myr. Bradley’s testimony established

that Maryland’s early filing deadline required the in-

stitution of campaign and petition drive activities

eighteen months prior to the general election. (A.

16.4). During this early time period an independent

candidate is forced to operate in a virtual void, since

the important issues of the election have not galvanized

aud, more importantly, the identity of the independ-

ent’s potential opponents is still unknown. (A. 16A),

Further, the premature mandatory commencement

date prevents a potential independent candidate from

mounting a petition drive and independent campaign

In response to an important issue which surfaces later

in the election year or in response to a potential op-

ponent who materializes during the primary election

campaign. The potential independent candidate in

Marvland must make his or her decision to run in a

political vaeunm. Accordingly, under the principles

embodied in Williams v. Rhodes, supra, this consti-

tutes a substantial burden on the exercise of constitu-

tional rights.

ee EIR ot A

25

The final indication provided by this Court that the

March 8 filing deadline is constitutionally infirm ap-

pears in Lubin v. Panish, 415 U.S. 709 (1974). In

discussing filing fees as a burden on constitutional

rights, the Court took the opportunity to note the

philosophieal shift which is occurring in current po-

litical thought:

Historically, since the Progressive movement of

the early 20th century, there has been a steady

trend toward limiting the size of the ballot in or-

der to “concentrate the attention of the electorate

on the selection of a much smaller number of offi-

cials and so afford to the voters the opportunity

of exercising more discrimination in their use of

the franchise.’ This desire to limit the size of

the ballot has been variously phrased as a desire

to minimize voter confusion, to limit the number

of runoff elections, to curb “‘ballot flooding,’’ and

to prevent the overw’ “ming of voting machines--—

the modern counterpart of ballot flooding. A ma-

jority of States have long required the payment

of some form of filing fee, in part to limit the bal-

lot and in part to have candidates pay some of the

administrative costs.

In sharp contrast to this fear of an unduly

lengthy ballot is an increasing pressure for broader

aecess to the ballot. Thus, while progressive

thought in the first half of the century was con-

cerned with restricting the ballot to achieve voting

rationality, recent decades brought an enlarged

demand for an expression of political opportunity.

The Twenty-fifth Amendment, the Twenty-sixth

Amendment, and the Voting Rights Act of 1965

reflect this shift in emphasis.

415 U.S.* at 712-73 (citations

and footnotes omitted).

26

The Plaintiffs subscribe to this analysis and submit

that the substantial burdens imposed on independent

candidacies by the Maryland statutory scheme violate

not only the spirit of recent political thought, but also

the Constitutional rights of the Plaintiffs herein.

We believe the conclusion is inescapable, wpon the

evidence presented and the principles already enunci-

ated by this Court, that the Distriet Court properly

concluded that the remote petition filing deadline im-

posed by the Maryland statutory scheme ‘‘substan-

tially burdened the ability of Bradley to gain access to

the ballot. ..7’ (AJS. 6a). With this finding, the

burden shifts to the State to establish a compelling or

vital State interest which is furthered by the early

filing deadline and to establish that the means taken

to protect that interest are the least restrictive means

available. See, e.g., Elrod v. Burns, — U.S. —, 96

S.Ct. 26073 (1976) ; Buckley vy. Valeo, 424 U.S. 1 (1976) ;

Lubin v. Panish, 415 U.S. 709 (1976).

C. The State Has Established No Compelling or Vital State

Interests Justifying the Burdens Placed Upon the Exercise

of Plaintiff's Rights.

doth in argument before the District Court below

and on brief before this Court, the State has attempted

to show that Maryland’s remote filing deadline is justi-

fied by a variety of purported compelling state inter-

ests. Quite the contrary, however, the District Court

fully and properly rejected the purported compelling

state interests proferred to the District Court by the

State. Furthermore, the alleged compelling state in-

terests proferred by the State on brief are equally

lacking in merit. Failure to establish a compelling

state interest which is protected by the early filing

ae re

27

deadline requires that the burdensome March deadline

be rejected by this Court. See, e.g., American Party

of Teras v. White, 415 US, 767. T8O (1974); Dunn v.

Blumstein, 405 U.S. 330, 342 (1972); Bullock v. Car-

ter, 405 U.S. 134, 149 (1972). Each of the purported

compelling or vital state interests will be considered

seriatim.

First, it is suggested that the early March filing

deadline is necessary in order to provide sufficient

time for validation of the signatures appended to the

petitions and to accommodate legal challenges to the

determinations made by the State Administrative

Board of Election Laws. Arguably, the State has an

interest in determining within a reasonable time those

names that will appear on the general election ballot

so that the ballot and voting machines can be prepared

for the general election in an orderly fashion. See,

District Court Opinion, AJS. 6a. We readily admit

that the orderly functioning of elections is a valid state

interest. However, the Mareh filing deadline does not

further that interest. First, as the District Court

properly reeognized, the certification of candidates’

names for placement on the general election ballot

oceurs in Maryland in late August. See District Court

Opinion, AJS. Ta; § 8-4. Thus, it is only in late Au-

gust that the fate of a potential independent candidate

need be determined. As presently formulated, the

Maryland statutes require that the validity of an inde-

pendent’s nominating petition must be determined in

35 days. See Distriet Court Opinion, AJS. 7a. Thus,

from an administrative standpoint, since the sufficiency

of an independent candidate’s nominating petition

need not necessarily be determined earlier than late

August, a filing deadline of mid-July for independent

28

candidates’ petitions, a period of 35 days prior to late

August, would still guarantee that the ballot certifica-

tion take place in timely fashion. Further, from an

administrative standpoint, it should be noted that the

State Administrator of Election Laws admitted at the

Hearing before the District Court that a J uly filing

deadline for independent petitions would not create an

impracticable administrative situation. (A. 63A). The

final indication that a July filing deadline is not ad-

ministratively burdensome is that in non-presidential

election years, the filing date for independent candi-

dates’ petitions actually falls in July. (A. 62A). The

proper functioning of the November general election

is not a compelling or vital state interest which is pro-

tected by, or remotely related to, the March filing dead-

line.

A second purported vital state interest, reviewed by

the District Court was the valid interest of a state in

preventing a defeated primary candidate from utiliz-

ing the nomination by petition process to gain a place

on the ballot. (AJS. 7a). Arguably, this could oceur

if a July deadline were placed on independent eandi-

dates and the party primary elections were held in

May as is presently done in presidential election years.

The defeated primary candidate could have two months

to complete a petition drive as an independent. How-

ever, this possibility is precluded by a Maryland statu-

tory provision which forbids the printing of a defeated

primary candidate’s name on the general election bal-

lot for any office. § 8-2. Thus, the early filing dead-

line is not necessary to protect this state interest.

A third purported state interest requiring the deter-

mination of the sufficiency of the independent candi-

et Ne tee ese

Oe wetate s

29

dates’ nominating petitions in March is to foster “the

intelligent exercise of the franchise by those voting in

the primary, i.e., that a voter in the primary ean cast

his vote more knowledgeably and effectively if he

knows which independent candidates will or will not

be on the final ballot.”’ See District Court Opinion,

AJS. 8a. The District Court properly discounted this

alleged state interest by pointing out that a more sig-

nificant factor to the intelligent exercise of the fran-

chise at the primary election would be the identity of

the opposing party’s candidate for the general elec-

tion. Since that person’s identity remains unknown

to the voters until after the primary election, the state

interest in intelligent voting is not served by requiring

that independent candidates be determined far in ad-

vance of the date of the primary election held for

partisan candidates. Id.

At oral argument before the District Court, the

State argued an additional purported compelling state

interest, i.c., the desirability of the state to treat par-

tisan and non-partisan candidates alike. (Tr. 174-75).

The District Court properly dismissed this spurious

assertion since the Maryland statutory seheme most

certainly does not treat partisan and independent can-

didates alike. See District Court opinion, AJS. 9a.

In effect, the petition gathering process constitutes

the primary election for the independent candidate—

this is the mechanism by which the independent candi-

date gains a position on the general election ballot.

Thus. March 8, 1976, which is the date for filing of

certifieates of candidacy by all candidates and the date

for filing of independent candidates’ petitions, marks

the beginning of the primary contest for partisan can-

didates and the end of the primary contest for inde-

30

pendents. This is inherently unequal treatment and

cannot be used to support an alleged compelling state

interest that independents and partisan candidates be

treated equally.

In its brief to this Court, the State suggests that

four additional compelling state interests are present

to justify the early March filing deadline. None of

these additional proffered state interests survives the

test of ‘exacting scrutiny”’ laid down by this Court.”

Sce Dunn v. Blumstein, 405 U.S. 330, 343 (1972).

The first of the latest purported compelling state

interests is that of protecting the electorate from

“unscrupulous party candidates’? who might support

a petition drive of an independent candidate with a

name or philosophy similar to that of an opponent.

(Br. 35). The assumed ultimate effect would be that

voters might be artificially siphoned off from the

opposition candidate. (Br. 36). This argument de-

serves little attention. The attempt by the State to

justify the early filing deadline on this premise

refleets a cynicism of the political process and deni-

grates the sophistication of the Maryland electorate.

Even if a so-called “name’s-the-same candidate” (Br.

36) did gain ballot position in a Maryland election

through “unserupulous”’ behavior, no significant effect

would result. The **name’s-the-same candidate’? would

be branded as 2 sham candidate and any party candi-

da * who prompted or fostered this tawdrv conduct

would be exposed to the ultimate detriment of his own

campaign. Moreover, the probability of successful exe-

'? Indeed, their emergence at this stage of the proceedings

suggests the hint of afterthought rather than of substance.

31

eution of election misconduct resulting in voter coufu-

sion as described by the Siate is negligible. The belated

attempt of the State to justify its early filing deadline

on this purported state interest fails.

The second alleged compelling state interest relied

upon in the brief of the State is the promotion of voter

and candidate knowledge of ail general election candi-

dates at the same time. In explanation of this state

interest the State quoted a seetion of the oral opinion

of a three judge distriet court in Auerbach v. Mandel as

which stated that the state has a legitimate interest in

requiring that all candidates be known at the same

time. (Br. 37). The Bradley District Court consid-

ered this qoute from Auerbach and stated that it was

‘pure dictum.’ See District Court Opinion, AJS. Ta.

This description of the nature of the quotation relied

upon by the State is particularly telliag since Judge

Winter authored beth the Awerbuch and Bradley

opinions. Tle was thus in a uniquely advantageous

position to evaluate the language of the Auerbach

opinion, In addition to stating that the language from

the Auerbach opinion was dictum, Judge Winter

further observed quite correctly in Bradley that the

Marvland filing requirement ‘does not permit all

candidates to know all of their opponents at the same

time.’’ See, Distriet Court Opinion, AJS. Ta.

The State also argues that indentifieation of all

general election candidates simultaneously protects the

rights of independent candidates who might be (lis-

advantaged by remaining as wneertified candidates for

“18 Ne. 74-141-N (D. Md., March 3, 1972), aff'd 409 U.S. 808

(1972).

32

some time after the primary election “ and protects the

rights of the victors of partisan primary elections who

might otherwise be surprised at finding a newly

certilied independent opponent in the field late in the

election. The State argues that the filing deadline of

March 8 with certification occurring in mid-April

removes these possible dangers. (Br. 37-38). This

position is nonsensical. First, it ignores the fact that,

under the present statutory scheme, the independent

‘andidate is always faced with unknown candidates on

the date of his filing. There can be no compelling state

interest in preserving this inequity. Second, the State

eau easily expedite the validation of signatures, just

as it expedites the counting of votes. Finally, the

likelihood of the success of the petition can be deter-

mined easily by those with a substantial interest in the

outcome, Moreover, any ephemeral effeet which may

eceur as a result of an independent candidate’s certifi-

cation being made afier primary election is obviated by

an alternative statutory scheme which was suggested by

the Plaintiffs and recognized by the Court below. That

alternative is diseussed fully in Part 1(C) of this Ar-

gument, infra,

' The State cites as one example of the disadvantage experienced

by an independent awaiting certification the difficulties that can-

didate will experience in collecting money. (Br. 38 and fn. 18),

The State recites Mr. Bradley's testimony on affidavit that con-

tributors were awaiting his certification before committing funds.

Plaintiffs submit that Mr. Bradley's fundraising problems were

distinguishable from the proposition propounded by the State. Mr.

Bradley was not a candidate awaiting certification by the State

Administrative Board of Elections Laws. Mr. Bradley was in a

much nore tenuens circumstance. He was a candidate who had

been denicd certification by the Board and who would become a

candidate only as a result of this litigation.

33

The State submits as vet another purported vital

state interest the need for full public discussion by all

candidates during the primary election. We agree

with this proposition and concur that a program which

fosters publie discussion is beneficial to the electoral

process. However, an unreasonably early filing dead-

line is not only unnecessary to protect that interest, but,

in fact, thwarts it. The State improperly concludes that

only by an early filing deadline will publie discussion be

fostered.

It is axiomatic that any statewide independent candi-

date who at some time during the election year, whether

before or after the primary, must gather in excess of

50,000 signatures on petitions, will take advantage of

any opportunity to speak to the public on the issues of

the campaign. If an independent candidate is running

a petition drive, he or she will take every opportunity

to gain exposure. <As the State properly points out

(Br. 38), Mr. Bradley did not take part in active dis-

cussion during the primary election campaign. But

Mr. Bradley was not conducting a petition drive. He

had been denied certification by the State Board of

Election Laws and could gain access to the ballot only

through the suecessful completion of major constitu-

tional litigation. His position as a prospective candi-

date was, at very best, tenuous, Since he had been

denied a position on the ballot, campaigning ACTOSS the

state would have been a futile act, at least until the May

17, 1976 District Court opinion in this case.

An independent candidate will reasonably take ad-

vantage of any public forum available to the candidate

during the petition drive. In an attempt to foster pub-

lie discussion, then, it is more rational to extend the pe-

34

tition gathering period to include the high political in-

terest period of the primary election campaign, rather

than to terminate the petition drive prior to that time

period. The State’s present statutory scheme subverts

rather than fosters full public discussion.

The final alleged compelling state interest propounded

by the State is that the present statutory scheme requir-

ing independent candidates to file nominating petitions

in early March in presidential election years allows

Maryland voters to participate in an early presidential

primary election which assumedly gives Maryland vot-

ers an increased role in the selection of presidential

candidates, (Br. 39). The May presidential prefer-

ence primary needs no protection from the Plaintiffs in

this case. Neither this suit, the relief sought therein,

nor the timing of the independent candidate's petition

drive affects in any way the presidential preference

primary date. This purported vital state interest is wn-

related to independent candidacies,

No compelling or vital state interest has been pre-

sented by the State. Thus, the Distriet Court properly

found the early filing deadline to be in violation of

Plaintiffs’ constitutional rights.

D. The State Has Failed To Establish that the Remote Filing

Deadline Is the Least Restrictive Alternative Available

To Protect Any Valid or Compelling State Interest.

ven assuming arguendo that the State has proffered

a valid or compelling state interest which is protected

hy the early filing deadline, the constitutional analysis

is notatanend. The State must eo further and estab-

lish that the actual means chosen to protect that inter-

est, .¢., the March filing deadline, is the alterative

Which places the least restraint on the exercise of con-

35

stitutionally protected liberties. Sce, ¢.g., Elrod V.

Burns, — U.S. —, —, 96 S.Ct. 2673, 2684-85 (1976) ;

Kusper v. Pontikes, 414 U.S, 51, 58-99 (1973); Dunn

v. Blumstein, 405 U.S. 320, 342-43 (1972). If any al-

ternative means are available to protect the state's in-

terest, the state may not choose the way of greater Inter-

ference with constitutional rights. ‘If [the state] acts

at all, it must choose ‘less drastic means.’ ”’ Dunn v.

Blumstein, supra at 343; Shelton v. Tucker, 364 | 5.

479, 488 (1960). The State clearly has the burden of

establishing its compelling state interests. The State

also must earry the burden of establishing that the

means chosen ere the means least restrictive on the

exercise of constitutional rights. Cf. Elrod v. Burns,

supra.

The State, both here and before the District Court,

failed to consider and balance the varying restrictions

imposed on constitutional rights by available alterna-

tives to the remote March filing deadline for independ-

ent nominating petitions. Indeed, the State posited no

alternatives to its present statutory scheme.

The Plaintiffs consistently have suggested such an

alternative. Assuming, for purposes of this discussion,

that the State does have a valid or compelling interest

in requiring that all candidates for the general election

be identified simultaneously (Br. 56), an alternative

statutory scheme is readily available which will protect

this alleged state interest in a way less burdensome to

euarauteed constitutional rights. The Plaintiffs sug-

gested such a scheme before the District ¢ ourt (Tr.

A45-46, 155). Further, the District Court endorsed that

proposed scheme, See District Court Opinion, AIS. 9a.

The scheme provides that an independent candidate

36

would file his or her certificate of candidacy with the

appropriate state officials at the sme time as the filing

by partisan candidates of their certificates. In 1976,

that date was March 8, 1976. The independent candi-

date could be required to submit at that time, with the

certificate, a nominal but not insubstantial number of

registered voters’ signatures, for instance 1,000 signa-

tures fora statewide office. Then, during the pendency

of the primary election campaign, the independent can-

didate could complete his petition drive. On primary

election day, the independent candidate would file the

remaining signatures of registered voters. Such a

scheme fully protects all the alleged eompelling state

interest proferred by the State without substantially

burdening the Plaintiffs’ rights. The early filing of

the independent’s certificate of candidacy along with

the nominal but not insubstantial number of signatures

would cause all candidates for one office to be identified

simultaneously. The Plaintiffs’ proposed scheme

would result in all candidates being treated equally.

The proposed scheme would foster public diseussion

since the independent candidate can take advantage of

increased voter interest in polities by making numerous

public appearances and by utilizing inereased media in-

terest as the primary election campaign advances.

Further, the proposed scheme would not open the doors

to frivolous independent candidates since the independ-

ent must still garner the statutorily imposed total num-

ber of signatures, For statewide office in Maryland in

1976, that number was 55,155 signatures (A. 16A).

The benefits accruing to the independent candidate

are clear. The independent candidate could complete

the main portion of the petition drive in a time period

during which voter and media interest peaks, during

er r™ seas

cap sohbet tee

37

which increased monetary and volunteer contributions

could be expected, during which weather conditions are

improved, and during which traditional politically ori-

ented activity is high.

The State spoke briefly to this alternative proposal

by the Plaintiffs and endorsed by the District Court.

(Br. 37-38). The sole complaint raised by the State in

its critique of the Plaintiffs’ alternative scheme is that

if the independent candidate files the major portion of

the required signatures on primary election day, suff-

ciency of the number of those signatures might not be

determined wotil the validation period had closed.

Clearly there exist at least two methods to vitiate any

purported difficulties created by this situation, First,

the independent candidate could be required to certify

on primary election dey the gross number of signatures

which he or she is submitting. From that number, an

informed judgment could be made of the likelihood of

the independent candidate's success. The average rate

for invalidation of signatures would be applied to that

gross number and a clear picture could be developed on

primary election day of the possibility of the independ-

ent candidate's name appearing on the general election

ballot. (A. 39A-40A). Second, in addition to requir-

ing the independent candidate to certify the number

of gross signatures presented, the local county election

boards could be required to determine the gross num-

ber of signatures filed within several days of the pri-

mary election date. A mere counting of signatures

would be necessary. No more time would be involved

than, for example, a detailed count in a closely contested

election. Then the identical analysis above described

could be applied to that number and a clear picture of

the independent’s possibility of success could be made.

38

Based on that clear picture, partisan candidates, the

media, potenti] contributors and the independent can-

didate could rely on this informed judgment in plan-

ning activities during the brief intervening 35 day pe-

riod from the primary election date to the date for cer-

tification of the independent candidate.

The Plaintiffs’ proposed statutory scheme is a work-

able alternative which protects the alleged interests of

the State and grants the independent candidate the

fullest exercise of constitutional rights.

The State has failed to establish the existence of a

valid or compelling state interest requiring protection

by means of the early filing deadline. Further, assum-

ing arguendo that such an interest has been established,

the State has failed to show that the early filing dead-

line ‘for independent nominating petitions is the least

restrictive alternative which is available to protect that

interest.

The District Court properly found t iat the early fil-

ing deadline of § 7-1(e) * violated Plaintiffs’ constitu-

tional rights.

Il. THE BRADLEY DISTRICT COURT PROPERLY APPLIED THE

PRINCIPLES ENUMERATED IN HICKS v. MIRANDA IN RELY-

ING UPON A DISTRICT COURT OPINION WHICH HAD BEEN

SUMMARILY AFFIRMED BY THE SUPREME COURT.

Salera vy. Tucker" is a case decided originally by the

Federal District Court for the Eastern District of

Pennsylvania which determined that certair portions

of the Pennsylvania election laws violated the United

15 The early filing deadline provisions of § 7-1(e) are presently

contained in §7-1(i). See, fn. 1, supra.

16399 F.Supp. 1258 (E.D. Pa. 1975), aff’d, 424 U.S. 959 (1976).

pote ee ee

at ha net ae a

39

States Constitution. Sa/era was appealed to the Su-

preme Court of the United States where it was sum-

marily affirmed. The Bradley Distriet Court examined

Salera in light of the summary affirmance principles

enunciated in the Supreme Court’s Opinion in Hicks

v. Miranda.” The Bradley District Court determined

that the summary affitmance of Salera was binding and

Salera was applied to the factual situation extant in the

Bradley litigation. Plaintiffs submit that the Bradley

liistrict Court properly applied the principles enum-

erated in //icks and that the Bradley District Court

correctly relied upon Sa/era in deciding the ease below.

Hicks is a recent ease which restated this Court’s po-

sition that a summary affirmance by this Court is a de-

cision on the merits of the litigation below. 422 U.S. at

345-44, This jurisprudential principle of the treatment

of summary affirmances has been recognized by this

Court in the past. Ohio er. rel. Eaton vy. Price, 360 US.

246, 247 (1959). Further, this principle has been very

recently re-affirmed, Usery v. Turner Elkhorn Mining

Co., — U.S. —, —, 49 L.1d.2d 752, 765 (July 1, 1976).

This treatment of summary affirmance has similarly

heen applied broadly by lower Federal Courts. See,

e.g., Brady vy. State Bar of California, 5°23 F.2d 502,

903 & n.1 (9th Cir. 1976); Jngraham v. Wright, 525 F.

2d 909, 918 (Sth Cir.). cert. granted on other grounds,

—, U.S. —, 48 L.Ed.2d 815 (May 24, 1976); Thonen vy.

Jenkins, 1T F.2d 3,7 (4th Cir. 1975).

The State does not attack the teachings of Hicks;

rather it argues that the Bradley District Court im-

properly applied /icks. (Br. 39-45). Plaintiffs submit

that the State is in error in this proposition.

17 492 U.S. 332 (1975).

40

In its Hicks analysis of Salera, the Bradley District

Court indicated that Salera was binding authority in

the case only if Bradley and Salera are factually indis-

tinguishable and if it could be fairly said that Salera

decided the issue before the Bradley District Court. See

District Court Opinion, AJS. 8a.

Plaintiffs submit that the Salera decision cannot be

Cistinguished in any meaningful manner from the

facts extant in Bradley. The State argues that the

cases are distinguishable since the Pennsylvania elee-

tion provisions contained burdens in addition to an un-

reasonably early filing deadline and that the totality of

the burdens in Sa/era caused the statutory scheme to be

declared unconstitutional. (Br. 43-44). The Plaintiffs

submit, however, that the unconstitutionality of the

Pennsylvania filing deadline which fell 218 days before

the general election was the sole issue decided by Salera.

In Salera, the plaintiffs challenged certain provisions

of the Pennsylvania Election Code on two principal

bases. The first general claim alleged that a 3-week

limitation on gathering signatures for nominating pe-

titions for an independent candidate was a violation of

the Fourteenth Amendment. The three-judge court re-

jected this claim, holding, on the basis of Storer vy.

Brown, 415 U.S, 724 (1974), that, ‘*the three-week pe-

riod is constitutional as applied to plaintiffs.’? 399 FP,

Supp. at 1265.

The court then passed on to the second claim of the

plaintiffs—that a requirement for filing signatures on

nominating petitions on a date far in advance of the

general election was constitutionally impermissible.

There can be no doubt that the court divorced the two

issues completely, and in no way treated them on a

SSS

41

theory of ‘‘totality.”’ In this regard, the Salera court

stated :

The seeond half of plaintiff’s challenge to § 2913

(b) an’ § 2913(¢)—that the period for gathering

signatures on nominating petitions is so remote

from the general election that it substantially im-

pairs plaintiffs’ ability to appear on the ballot or

to vote for otherwise qualified candidates—raises

diffcrent issues than were raised by plaintiffs’ chal-

lenge to the three-weck limitation, 399 F. Supp. at

1266 (emphasis added ).

Following this express severing of the two issues, the

court in Sa/era went on to hold that a requirement for

filing signatures on petitions by a date far removed

from the general election was unconstitutional. 39%

F. Supp. at 1269. According to the clear words of the

Salcra decision itself, Salcera was a one issue case, The

Bradley District Court so found. (AJS. 9a).

An examination of the Pennsylvania and Maryland

election codes, insofar as they relate to the timing of

the filing of nominating signatures, thus becomes eru-

cial. In Salera, the Pennsylvania Election Code re-

quired that the signatures be filed 218 days before the

general election and 49 days before the primary elec-

tion. 399 F.Supp. at 1266. Under the Maryland Flee-

tion Code, the nominating signatures for independent

candidates are required to be filed 239 days before the

general election and 70 days before the party primary

election. Since the sole issue decided in Salera was

that the filing deadline for independent nominating

petitions was unreasonably early, and since the Mary-

land filing deadlines fall even earlier than those in

Salera, the Salera situation is indistinguishable from

the Bradley case.

42

From this determination, the Bradley District Court

went to a second analytical level and determined what

issue was presented to the Supreme Court in its sum-

mary affirmance in Salera. The Bradley District

Court examined the jurisdictional statement filed by

the Commonwealth of Pennsylvania and the motions

to affirm filed by the various plaintiffs in Salera. See,

District Court Opinion, AJS. 8a. Although the juris-

dictional statement and motions to affirm noted in

passing the three-week period for the collection of

signatures, the Bradley District Court noted that none

of the papers filed with the Supreme Court argued

that the result reached in Salera was based either in

whole or in part on the three-week collection period.

Id.

The Bradley District Court determined on the bases

of the dichotomized nature of the Salera opinion and

the content of the Salera jurisdictional statement and

motions to affirm, that one and only one issue was pre-

sented to the Supreme Court for its ultimate determi-

nation to summarily affirm. That issue was the un-

reasonably early filing deadline.

The Bradley District Court’s dual level of analysis

is clearly suggested by the Supreme Court’s own anal-

ysis of a prior summary affirmance. In Gibson vy.

Berryhill, the Supreme Court examined the jurisdic-

tional statement and motion to affirm filed in Geiger v.

Jenkins,” a case which the Supreme Court had sum-

marily affirmed earlier, to determine the factual situa-

tion existing in the earlier case. 411 U.S. at 576. The

Supreme Court then analyzed Geiger for possible bases

—_—

411 U.S. 564 (1973).

1 401 US. 985 (1971).

43

upon which to distinguish it from the litigation the

Court was then considering. 411 U.S. at 576-77. This

is the precise analysis undertaken by the Bradley Dis-

trict Court in its consideration of the Salera opinion.

That analysis properly implemented the principle

enunciated in /licks v. Miranda, supra,

The State argues on Brief that the Bradley District

Court did not take full cognizance of the import of

three prior Supreme Court summary affirmances of

district court cases which involved § 7-1(e) of the

Maryland Election Code. See Auerbach vy. Mandel,

Civ. No, 74-141-N (DD. Md., March 3, 1972), aff’d 409

U.S. 808 (1972); Maryland People’s Party v. Mandel,

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

U.S. 901 (1973); Wood yv. Putterman, 316 F. Supp.

646 (D. Md.), aff'd 400 U.S. 859 (1970). However,

none of these cases presented to the Supreme Court

the issue of the constitutionality of the early filing

deadline.

Auerbach v. Mandel, supra, was relied wpon heavily

by the State in arguing that the Supreme Court has

approved by summary affirmance the early filing dead-

lines imposed by Maryland. (Br. 37). Despite the

fact that the Auerbach Distriet Court did comment on

the burdens imposed by the early filing deadline, the

constitutionality of that provision was not decided in

Auerbach. The Auerbach District Court stated:

Now having stated our views as a matter of statu-

tory construction, it seems to us that there is no

constitutional question which the suit of the Peo-

ple’s Party raises, and as a consequence, we find

no basis for giving relief in accordance with the

prayers set forth in that complaint.

Jurisdictional Statement, Auerbach

v. Mandel, No. 71-1592, at 29.

44

The Auerbach District Court then went on in dictum

to comment upon Maryland’s early filing deadline. The

Bradley District Court considered the Auerbach com-

ment on the filing deadline and branded it as pure dic-

tum. See District Court Opinion, AJS. lla. The

Bradley District Court was in a uniquely knowledge-

able position to comment upon the weight to be given

the Auerbach comments. Two of the members of the

Auerbach three judge panel were members of the Brad-

ley panel. In addition, the author of the Bradley opin-

ion, who described relevant portions of the Auerbach

opinion as pure dictum, authored the Auerbach opin-

ion as well. The Bradley District Court correctly con-

cluded that the Supreme Court did not summarily

affirm this dictum and was correct in coneluding that

Auerbach was not Linding law on the constitutionality

of Maryland’s early filing deadline.

Maryland People’s Party v. Mandel, supra, involved

issues identical to those presented in Auerbach. The

Maryland People’s Party District Court dismissed the

complaint based solely upon the Order and Opinion in

Auerbach. See Maryland People’s Party v. Mandel,

Order, No, 72-524, Jurisdictional Statement 8a. Thus,

Maryland People’s Party, like Auerbach, failed to pre-

sent to this Court for summary affirmance the issue of

the constitutionality of the early filing deadline.

Finally, Wood v. Putterman, supra, did not consider

either the issue of independent candidacies or the bur-

densome nature of early filing deadlines. Wood in-

volved the ability of a loeal county political party to

aualify as a “party,’’ with the ability to nominate

candidates by means of a party primary or primary

meeting. 316 F.Supp. at 648. The statutory filing

45

deadlines were merely referred to in dicta. Jd. at 649.

The jurisdictional statement in Wood did not raise

for this Court’s determination on summary affirmance

the issue of the constitutionality of the early filing

deaQlines for independent candidates. See Wood v.

Putterman, No, 70-704, Jurisdictional Statement.

None of the prior summary affirmances submitted

by the State as evidence that this Court had deter-

mined the constitutionality of Maryland’s early filing

deadline presented that, issue to this Court for deter-

mination. The Bradley District Court properly dis-

counted the precedential effect and binding nature of

this Court’s summary affirmances in Auerbach, Mary-

land People’s Party and Wood. In making its deci-

sion helow, the Bradley District Court scrutinized the

Salera decision and the various papers filed before this

Court in Salera. Further, the Bradley District Court

reviewed and properly discounted all prior summary

affirmances which involved in any alleged manner the

early filing deadline for independent candidates in

Maryland. The Bradley District Court deemed itself

bound by this Court’s summary affirmance of Salera,

See District Court Opinion, AJS. 12a. Plaintiffs eon-

cur in that determination.

CONCLUSION

The decision below is manifestly correct and can he

affirmed on either of two grounds. First, the District

Court was bound by this Court’s summary affirmance

of Salera v. Tucker, supra. The Bradley District

Court keenly serutinized Salera and other decisions

of this Court relating to the Maryland filing deadline

for independent candidates’ nominating petitions. On

this analysis, the District Court properly found that it

46

was bound by the legal determination made in Salera

under this Court’s teaching in Hicks v. Miranda, supra,

Second, the Bradley District Court undertook a tra-

ditional constitutional analysis of Maryland’s statu-

tory scheme. The Bradley District Court determined

that the early filing deadline substantially burdened

the rights of the Plaintiffs herein and that the deadline

was not justified by any compelling or vital state inter-

est. Further, even assuming that a compelling state

interest was established, the State failed to show that

the means chosen to protect that interest placed the

least restrictions possible on the exercise of constitu-

tional rights.

Plaintiffs submit that the provisions of § 7-1(e) of

the Maryland Election Code, now codified at § 7-1(i)*°

violate the rights of the Plaintiffs as guaranteed by

the First and Fourteenth Amendments to the United

States Constitution, and that the decision of the Dis-

trict Court should be affirmed.

Respectfully submitted,

Jon T. Brown

JAMES D. PEMBROKE

1700 Pennsylvania Avenue, NW

Washington, D.C. 20006

Attorneys for Appellees

*” See fn. 1, supra.