Jurisdictional Statement — Nader v. Schaffer

Supreme Court brief1976

Ask Donna

What actually matters in this document.

Text

_—— — >

Supreme Gourt, U.S ag

76-3048 | fr iLED =

| vcr 8 eS

Seen TREE OY, JR, CLERK |

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1976

No. 76-

NATHRA NADER AND ALBERT C. SNYDER, JR.,

Appellants.

Vv.

GLORIA SCHAFFER, Secretary of the State

of Connecticut; DEMOCRATIC PARTY OF

THE STATE OF CONNECTICUT; and RE-

PUBLICAN PARTY OF THE STATE OF

CONNECTICUT,

Appellees.

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR

THE DISTRICT OF CONNECTICUT

JURISDICTIONAL STATEMENT

LINDA F. DONALDSON,

ALAN B. MORRISON,

Suite 700

2000 P Street, N.W.

Washington, D.C. 20036

(202) 785-3704

Counsel for Appellants

ABB DUPLICATORS, INC.—1732 Eye Strest, N.W.—Washingten, 0.C.—298-6537

(i)

OPINION BELOW .

JURISDICTION .

STATUTE INVOLVED . . .

QUESTION PRESENTED

STATEMENT OF THE CASE .

A. Facts

B. Proceedings in the District Court .

C. The Decision of the Three-Judge Court

THE QUESTION PRESENTED IS SUBSTANTIAL

AND REQUIRES PLENARY CONSIDERATION BY

THIS COURT Sak cata aT aea ha

I. The Right of Independent Voters to Participate

in State-Run Primary ElectionsHas Never Been

Considered by This Court and is of Wide

Il. The Claims Made by Plaintiffs Involve

Fundamental Rights to Which the District

Court Gave Inadequate Consideration and

This Court Should Resolve Those Claims

Only After Full Briefing and Argument

CONCLUSION

APPENDIX

Judgment .

Memorandum of Decision

Notice of Appeal

(ii)

Affidavit of Albert C. Snyder, Jr.

Affidavit of Nathra Nader

TABLE OF AUTHORITIES

Cases:

American Party of Texas v. White,

415 U.S. 767 (1974) .

Buckley y. Valeo,

424 US. 1 (1976) .

Bullock v. Carter,

405 U.S. 134 (1972) .

Cipriano v. Houma,

395 U.S. 701 (1969) .

City of Phoenix v. Kolodziejski,

399 U.S. 204 (1970) .

Cousins v. Wigoda,

419 US. 477 (1975) .

Dunn vy. Blumstein,

405 U.S. 330 (1972) .

Elrod v. Burns,

__ US. ___, 45 US.L.W. 5091

(June 28, 1976) .

Gilmore v. City of Montgomery,

417 U.S. 556 (1974) .

14, 24

9, 18, 21, 22, 24

18, 24

9, 18

11, 23

9, 11, 17, 21

. 8, 10, 17, 20, 22, 24

(iii)

Page

Gray v. Sanders,

yk OY Pe a ee ee ee 18

Griswold v. Connecticut, .

906 BO CI OE ne 0 es ee « ere SB

Hill v. Stone, |

PR Ti...) a oe ee 18, 22

Jenness v. Fortson,

Pe a

Kramer v. Union Free School District,

Pe ee

Kusper v. Pontikes,

414 U.S. 51 (1973). . 9, 14, 19, 26

Norwood v. Harrison,

Pen <5 sss 6's 3,5 8 5 oe

Ray v. Biair,

943 US. 214 (1982). 2 ww te eee ew ew 1D

Reynolds v. Sims,

ee ae ee ee

Rosario v. Rockefeller,

410 U.S. 752 (1973) . 14, 18, 26, 27

Storer v. Brown,

RS eer se oe or oe. 24

Talley v. California,

362 US. GO (19GD) . ww ew tt te ee we 21

West Virginia State Board of Education v. Barnette,

Ne Pere ae ea ae)

(iv)

Williams v. Rhodes,

393 U.S. 23 (1968)

Statutes:

United States Code

Title 28, Section 1253 ....

Title 28, Sections 2281 and 2284

Title 42, Section 1983

Connecticut General Statutes, Title 9,

Chapter 141

Sections 9-3, 9-4, 9-5

Chapter 143

Section 9-55

Section 9-56 .

Section 9-59 .

Chapter 147

Sections 9-239, 9-240 .

Chapter 153

Sections 9-372, 9-382 to 9-388, 9-382, 9-390,

9-399 to 9-415, 9-407, 9-408, 9-415, 9-416,

9-424 .

Section 9-423 :

Sections 9-431 to 9-450, 9-436

Section 9-431

Other Authorities:

K. Mulcahy & R. Katz, America Votes

(Prentice-Hall 1976)

4~XN

15, 16

(v)

N. Nie, S. Verba & J. Petrocik, The Changing

American Voter (Harv. Univ. Press 1976) .

Note, "State Action: Theories for Applying

Constitutional Restrictions to Private Activity,”

74 Colum. L. Rev. 656 (1974) :

Rule 19, Fed. R. Civ. P. .

W. Schneider & D. Yergin, "What If They Gave

a a a

(Oct. 1, 1976) ia’ :

Page

15, 16, 25

(16

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1976

No. 76-

NATHRA NADER AND ALBERT C. SNYDER, JR.,

Appellants.

GLORIA SCHAFFER, Secretary of the State

of Connecticut; DEMOCRATIC PARTY OF

THE STATE OF CONNECTICUT; and RE-

PUBLICAN PARTY OF THE STATE OF

CONNECTICUT,

Appellees.

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR

THE DISTRICT OF CONNECTICUT

JURISDICTIONAL STATEMENT

This appeal raises the question of whether it is con-

stitutionally permissible for a state to refuse to allow duly

registered voters to participate in state-run, state-financed,

and state-mandated primary elections merely because those

voters insist upon remaining independents and refuse as

a matter of conscience to join a political party. Because

the issue has never been decided by this Court, because

the outcome of the case is of great concern to millions

of independent voters throughout the United States and

because the District Court deviated significantly from this

Court’s decisions dealing with the right to vote and ig-

nored certain of this Court’s decisions dealing with free-

dom of association, this Court should note probable juris-

diction and set the case for full briefing and argument.

OPINION BELOW

The opinion of the District Court has not yet been

officially reported. It is set forth at pages A-2 and A-26 of

the Appendix to this Statement.

JURISDICTION

This action challenges the constitutionality of Conn.

Gen. Stat. 89-431 on the ground that its enforcement de-

prives plaintiffs of their right to vote and their right to

freedom of association. Because plaintiffs sought an in-

junction against enforcement of a state statute, a three-

judge court was convened pursuant to 28 U.S.C. §2281.

The decision of the court on the merits was handed down

on July 14, 1976, and judgment was entered on July 20,

1976, denying plaintiffs’ motion for summary judgment

and granting defendants’ motion to dismiss. (Appendix

p. A-1.)° A timely notice of appeal was filed in the Dis-

trict Court on August 13, 1976. (App. 27.) This Court

has jurisdiction over the appeal under 28 U.S.C. $1253.

I Hereinafter, reference to documents printed in the Appendix

will be made in the form "App. 1."

STATUTE INVOLVED

The statute challenged by plaintiffs, Section 431 of

Title 9 of Connecticut General Statutes, provides in per-

tinent part:

Eligibility to vote at primary: No person

shall be permitted to vote at a primary of a

party unless he is on the last-completed enrol-

ment list of such party in the municipality or

voting district, as the case may be....

QUESTION PRESENTED

Does Conn. Gen. Stat. §9-431 deprive plaintiffs of

their constitutional rights by compelling them to choose

between exercise of their rights to vote and to associate

in support of a candidate on the one hand, and their

rights to freedom of association and to privacy of associa

tion on the other?

STATEMENT OF THE CASE

A. FACTS

Appellants, the named plaintiffs in this action, are

two registered voters from the Town of Winchester, Con-

necticut. Each refuses, for reasons of personal conviction

and principle, to enroll as a member of a political party.

As a result, along with 561,936 other independent voters,

who constitute 36% of the State’s electorate, they are

prevented by Connecticut law from voting in the state-run

primary elections in which major pay candidates for

public office are nominated.

Appellant Nader nas been a registered voter for more

than fifty years and has regularly voted in federal, state

and local general elections. (Nader Aff. ¥s 1, 2, App.

28.)? He has never been a member of any political party

because such affiliation would violate his beliefs. (Id.

43, App. 28.) As a result, he has never been allowed to

vote in the primary elections in which major party candi-

dates for public office are nominated and has thus been

unable to support fully certain candidates whom he pre-

ferred over those candidates who were eventually nomi-

nated. (Id. 44, App. 28.)

Appellant Snyder was enrolled as a member of the

Republican Party for almost 30 years, because it was

predominant in the towns in which he lived and because

its candidates best expressed his views on issues during

those years. (Snyder Aff. 43, App. 29.) In 1974, he

decided that there was no significant difference between

the two major parties. The Watergate scandals also per-

suaded him that the present political system makes can-

didates excessively dependent on their parties and unwill-

ing to be independent and honest. Convinced of these

facts, he was unwilling to foster the system by continuing

enrollment as a party member and decided to become an

independent. (Id. 44, App. 29-30.) Mr. Snyder believes

that he has had "little real choice between candidates"

at the general election and that the percentage of voters

who do not vote in such elections indicates that other

voters share his views. (Id. 95, App. 30.) Because of

his decision not to enroll, he is unable to support fully

certain candidates whom he prefers to those nominated

in primaries. (Id. 46, App. 30.)

2 This citation refers to affidavits made by each plaintiff and

filed with plaintiffs’ motion for summary judgment.

Plaintiffs are denied the right to participate in the

primary selection process by Conn. Gen. Stat. §9-431,

which provides that only voters who are on a party's en-

roliment list may vote in that party's primaries. In order

to appear on that list, a registered voter need only inform

the registrar of voters that he wants to join a particular

party. §9-56. No ideological test or loyalty oath is ad-

ministered. The registrar then compiles lists of the mem-

bers of each party, which are made ‘available for public

use" and are distributed to party leaders and to each can-

didate for nomination. 89-55. Enrollment is thus an

affirmative, public act of affiliation with a political party.

A previously unaffiliated voter is immediately entitled

to "the privileges of party enrollment," with the excep-

tions that he may not vote in a primary if he enrolls

after the third Saturday before a primary, and he may’

not participate in a party caucus or convention if he en-

rolls on the day of the caucus or convention. §9-56.

A voter who has been previously affiliated with one

party and who wishes to be placed on the enrollment

list of another may transfer simply by filing papers re-

questing the change with tne registrar, but he may not

vote in a primary or in a party caucus until six months

from the date of his application. 89-59; see §9-56.

The primary in which enrolled party members are

permitted to vote is not merely a private casting of

preferences but is financed and reguiated by the State.

The State provides the machines and the polling places

(89-436; see §§9-239, 9-240) and sets the date for the

election. §9-423. It prescribes the procedures to be used,

the officials who must supervise, and the methods of

resolving disputes and preventing fraud. §§9-451 to 9-450.

Defendant Secretary of State supervises the enforcement

of these statutes and of other sections of the State's elec-

tion law. 889-3, 9-4, 9-5; Title 9, Ch. 153, passim.

The State also regulates in detail almost every aspect

of the major parties’ nominating procedures leading up to

the primary elections. It requires the major parties to

hold conventions at which "party-endorsed"' candidates

for state and district offices are selected,? and prescribes

the procedures for delegate selection, for roll calls, and

for the tallying and reporting of final results. Id. §$9-382

to 9-388, 9-407, 9-408, 9-424. Equally important, it is

the State which decides whether the primary elections

from which appellants are barred will take place at all,

since 889-399 to 9-415 establish the conditions which

must be met before another member of the party may

challenge the party-endorsed candidate in a primary elec-

tion. If no candidate for a particular office fulfills these

requirements, no primary is held, and the name of the

party endorsee is placed on the general election ballot.

If one or more candidates succeeds, a primary is held,

and the winner's name is placed on the general election

ballot. Id. 889-382, 9-415, 9-416.

B. PROCEEDINGS IN THE DISTRICT COURT

On January 15, 1976, appellants filed suit in the

United States District Court for the District of Connecti-

cut on behalf of themselves and a class comprised of

3 "State or district offices" are those whose constituency is

larger than a single town. See 88#9-372(d), 9-372(m). Candidates

for “municipal office" are chosen by somewhat different procedures,

but primaries for those offices are held on the same day and under

the same general rules as the primaries for state and district offices.

See 889-372(g), 9-390, 9-423.

"all registered voters in the State of Connecticut who are

not enrolled in any political party and are therefore

barred from voting in primary elections." Complaint

46. The Secretary of the State of Connecticut, who is

Commissioner of Elections of the State ex officio, was

named as defendant.

The complaint alleged that the enforcement of Conn.

Gen. Stat. §9-431 by defendant and her agents deprived

the members of the plaintiff class of fundamental consti-

tutional rights, in violation of 42 U.S.C. $1983. Specifi-

cally, it alleged that by preventing members of the plain-

tiff class from voting in primary elections, while allowing

party members to vote, defendant deprived the members

of the plaintiff class of equal protection. As an alterna-

tive basis, the complaint alleged that defendant's conduct

impermissibly compelled the members of the plaintiff

class to choose between the exercise of two constitutional

rights, the right to vote and the right to freedom of

association. |

The complaint asked the District Court to enjoin

defendant from enforcing the statute insofar as it pro-

hibits the members of the plaintiff class from voting in

primary elections and to require defendant to instruct

local election officials to allow each member of the plain-

tiff class to vote in a primary election of his or her

choice. It also asked the court to certify the action as

a class action and to convene a three-judge court under

28 U.S.C. 82281 and 2284 to consider plaintiffs’ claims.

A motion to convene a three-judge court was filed with

the complaint, and on March 23, 1976, Chief Judge Kauf-

man of the Second Circuit issued an order to convene a

court composed of Circuit Judge Anderson, Chief District

Judge Clarie and District Judge Blumenfeld.

In the interim, defendant had answered the complaint

and had moved under Fed. R. Civ. P. 19 to add the two

major parties in the State of Connecticut and certain local

election officials as defendants. Thereafter, the Court

granted the motion to the extent of requiring joinder of

the major parties, and on April 13, 1976, plaintiffs filed

an amended complaint adding the State Republican and

Democratic Parties as defendants.‘

Since there were no disputed issues of fact, plaintiffs

moved for summary judgment, defendants filed motions

to dismiss, and a hearing was held on May 11, 1976, be-

fore the three-judge panel. On June 22, 1976, United

States Senator Lowell P. Weicker, Jr. of Connecticut

filed an amicus curiae brief in support of plaintiffs’ claims,

and on June 30, plaintiffs filed a supplemental memoran-

dum apprising the District Court of this Court's decision

in Elrod v. Burns, _ U.S. __, 45 U.S.L.W. 5091 (June

28, 1976).

C. THE DECISION OF THE THREE-JUDGE COURT

On July 14, 1976, the District Court filed its Memo-

randum of Decision, denying plaintiffs the relief they

sought and granting defendants’ motion to dismiss the

complaint, concluding that "89-431 is reasonably related

4 On March 12, 1976, plaintiffs filed a motion to certify the

class, which was opposed by defendants. At the argument on the

merits, defendant Secretary of State agreed that if plaintiffs were

successful in their claims, she would extend the relief ordered for

plaintiffs to all members of the plaintiff class. Consequently, plain-

tiffs agreed to withdraw their motion for certification of the class.

See Memorandum of Decision ('Mem. Dec.") at App. 24-25 n. 2.

to the accomplishment of legitimate state goals.'' (Mem.

Dec. at App. 21.) In reaching that result, the Court very

briefly considered some, but not all, of plaintiffs’ princi-

pal arguments, but devoted most of its discussion to the

interests of the two major parties and the reasons why

the State might have an interest in protecting the parties.

Thus, plaintiffs had .argued that enforcement of

the Connecticut statute violated this Court's holding

in Dunn v. Blumstein, 405 U.S. 330, 342 (1972), by re-

quiring independent voters to sacrifice enjoyment of cer-

tain fundamental constitutional rights — their rights to

vote and to associate freely in support of candidates of

their choice — in order to enjoy others — their rights to

freedom of political association and to privacy of associa-

tion. To establish the first part of that argument, they

relied on the line of cases beginning with Cipriano v.

Houma, 395 U.S. 701, 706 (1969), and Kramer v. Union

Free School District, 395 U.S. 621, 632-33 (1969), which

hold that total exclusion of a class of voters who are sub-

stantially interested in or affected by the results of an

election can be justified only by a 'compelling’’ state

interest.- Plaintiffs had also argued that their right to

associate fully in support of particular candidates, recog-

nized most recently in this Court's decision in Buckley

v. Valeo, 424 U.S. 1 (1976), was infringed when plain-

tiffs were denied the right to cast a ballot for those can-

didates. See Kusper v. Pontikes, 414 U.S. 51, 58 (1973).

5 The District Court accepted plaintiffs’ arguments that plain-

tiffs were interested in and affected by the results of the primary

elections, and that in general constitutional principles relating to

the right to vote apply in the primary election context. (Mem.

Dec. at App. 19, 25 n. 4.)

In order to enjoy these rights, plaintiffs had argued,

they are forced by the Connecticut statute to surrender

other constitutional rights of overriding importance to

them. Most notably, the statute coerces them into an

unwanted affiliation with a political party, in violation of

their right to freedom of association. Elrod v. Burns,

supra; see West Virginia State Board of Education v. Bar-

nette, 319 U.S. 624 (1943). Moreover, because lists of

enrolled voters are made public, their right to privacy of

association would be infringed if they succumbed to the

requirements of the statute in order to obtain their right

to vote.

Despite the fact that these arguments were set forth

in considerable detail in the plaintiffs' memoranda and in

the amicus brief filed by Senator Weicker, the District

Court afforded them only the briefest consideration in

its 27-page opinion. With regard to the right to vote,

the Court held that plaintiffs’ exclusion was proper because

plaintiffs did not share an interest which the Court pre-

sumed — without the slightest evidentiary support — that

party members had in selecting a candidate who could win

“while remaining most faithful to party policies and philos-

ophies."" (Mem. Dec. at App. 19.) As to plaintiffs’ right

to associate in support of particular candidates, the Court

observed that plaintiffs remained free to contribute time

and money to major party candidates of their choice and

to choose to support other candidates selected through

"alternate avenues of political activity." (Mem. Dec. at

App. 6.)

In response to plaintiffs’ arguments concerning their

right not to be coerced into unwanted affiliation, the

Court ignored Elrod and concluded that since party

enrollment "imposes absolutely no affirmative party obli-

gations on the voter in terms of time or money," no

constitutional right was infringed by the statute. (See

Mem. Dec. at App. 8-9.) It held further that privacy of

association was protectable only when an individual suffers

harassment because of his associations and that plaintiffs

had failed to demonstrate such harassment. (Mem. Dec.

at App. 9-10.) Finally, the Court never considered the

substance of plaintiffs’ argument, based on Dunn, that

the statute imposed an impermissible choice on indepen-

dent voters. Instead, the Court distinguished Dunn on the

ground that enrolling with a party is not ‘beyond the

capabilities or powers of an elector to perform." (Mem.

Dec. at App. 16.)

The bulk of the District Court's opinion was concerned

with the powers and rights of the major political parties.

The Court asserted, without factual support, that the

present dominant position enjoyed by these two parties

is in no way attributable to favors tendered by the State,

but is caused by the parties' "success," over time, "in

attracting the bulk of the electorate." This " '[s]uccess'

. . . does not necessarily call for strict constitutional scru-

tiny by the judiciary." (Mem. Dec. at App. 7.)

The Court stated further that each party is a ‘volun-

tary association,” whose goal is to effect "the will of its

members" by achieving office and implementing ‘its

policies and philosophies." It therefore ‘seeks to nomi-

nate those candidates who are most likely to win the

general election, while remaining most faithful to the

party's (i.e., its members) policies and philosophies."

(Mem. Dec. at App. 10-11.) Relying primarily on Cou-

sins v. Wigoda, 419 U.S. 477, 487 (1975), the Court

asserted that party members enjoy a constitutional right

of association which "may to some extent offset the im-

portance of claimed conflicting rights asserted by persons

challenging some aspect of the candidate selection process."'

(Id. at App. 11.) It stated that the State has an obliga-

tion to provide ‘‘affirmative protection" to these associa-

tional rights and, under Ray v. Blair, 343 U.S. 214, 221-

22 (1952), to shield the political parties from "intrusion

by those with adverse political principles.'' (Mem. Dec.

at App. 11-12.) In so ruling, the Court rejected the dis-

tinction offered by plaintiffs between an interest in ensur-

ing the loyalty of candidates for public office and an

interest in ensuring the loyalty of rank and file party

members. (Id. at 13-14.)

The District Court also held that the State's interest

in ''protecting the overall integrity of the historical electoral

process'' is advanced by Conn. Gen. Stat. §9-431, in two

ways. First, the statute enables the State to preserve the

parties ''as viable and identifiable interest groups," so that

the electorate may use party labels to identify the ideolo-

gical position of candidates in the general election. Second,

it enables the State to prevent ''fradulent and deceptive

conduct.'' (Mem. Dec. at App. 12.) In the Court's view,

such conduct includes not only ''raiding,'’ which involves

an attempt by the partisans of one party intentionally to

distort the results of another party's primary, but also the

very act of voting in a primary if one is not a member

of that party. (Id. at App. 15.)

With regard to raiding, plaintiffs had argued that inde-

pendent voters were by definition unlikely raiders and that

the fact that the state allowed independents to enroll

with a party within three weeks of a primary and one

day of a caucus, while requiring party members to wait

six months, indicated that the purpose of the statute was

not to deter raiding. The Court rejected this argument

on the ground that the legislature had determined that

the three week period “is sufficient to demonstrate that

a previously independent voter will not, in voting, engage

in disruptive or deceptive conduct... ." (Id. at App.

16.)

Finally, despite plaintiffs’ extensive arguments, based

on the decisions of this Court, that their fundamental

constitutional rights were totally denied by enforcement

of the Connecticut statute, the Court refused to apply

strict scrutiny. Instead, noting that "incidental" or

"minimal" burdens on the exercise of constitutional rights

need not be justified by “compelling'’ state interests, the

Court held that the statute satisfied the less rigorous

“rational relationship" test. (Id. at App. 20-21.)

THE QUESTION PRESENTED IS SUBSTANTIAL

AND REQUIRES PLENARY CONSIDERATION

BY THIS COURT

In this case, two independent voters assert that sec-

tion 9-431, which permits only members of political

parties to vote in primary elections, deprives them of the

power to exercise fully certain fundamental rights pro-

tected by the Constitution. The question presented is

substantial, not only because a controversy involving the

exercise of basic individual rights lies unresolved by this

Court, but also because independent voiers now play an

increasingly important role in American politics. The

District Court's failure to confront the arguments made

by plaintiffs, and to analyze carefully and realistically the

nature of the parties and their relationship with the State,

leaves the full dimensions of this question unexplored.

Therefore, the Court should set this case down for full

briefing and argument on the merits.

|. THE RIGHT OF INDEPENDENT VOTERS TO PARTI-

CIPATE IN STATE-RUN PRIMARY ELECTIONS HAS

NEVER BEEN CONSIDERED BY THIS COURT AND

IS OF WIDE SIGNIFICANCE.

The issue raised by this case has never been presented

to this Court, let alone resolved by it after plenary con-

sideration. Although this Court has often answered re-

lated questions, its opinions do not preclude. this suit. In

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

v. Pontikes, 414 U.S. 51 (1973), the Court considered only

the effect of durational enrollment requirements on the

constitutional rights of registered voters who wished to

enroll with political parties. Neither case concerned the

rights of independent voters, who steadfastly refuse to

associate with a political party. In cases like Storer v.

Brown, 415 U.S. 724 (1974), American Party of Texas v.

White, 415 U.S. 767 (1974), and Jenness v. Fortson, 403

U.S. 431 (1971), the Court has considered the rights of

independent candidates and their supporters. But the in-

dependent voters who are suing here have no connection

with or interest in independent candidates and therefore

the holdings of those cases are inapposite to this case.

Two factors militate in favor of this Court's giving

plenary consideration to plaintiffs’ claims. The first is

that independent voters now play an increasingly import-

ant part in electoral politics. For various reasons, most

notably because of the political events of the past ten

years, their ranks have steadily grown until now 36% of

the electorate in Connecticut and 38% across the country

term themselves independents.® Nationwide, more than

45% of the voters under 30 years of age are independents.’

Two characteristics mark this segment of the electorate.

First, the attributes of contemporary independent voters

indicate that they are more sophisticated politically than

the independent voters of earlier years. ‘They reject the

party system consciously as a response to political events,

while remaining interested and continuing to vote... .

[T]he new independence has emerged among the young,

well educated, professional voters largely as a response to

issues."® Second, because of this sophistication, and be-

for partisanship.? Thus, the voters most directly affected

by the results of this suit represent a large, distinct group

likely to have a continuing influence on the shape of

American politics.

by the Secretary of State. The nationwide figure reflects voter

affiliation as of 1974 and is taken from data compiled by the

Survey Research Center for Political Studies at the University of

Michigan. These studies are analyzed in N. Nie, S. Verba & J.

The Changing American Voter 49 (Harv, Univ. Press 1976)

"Nie"), a comprehensive new study of voting behavior.

A similar figure is reported in K. Mulcahy & R. Katz, America

Votes 46 (Prentice-Hall 1976) (hereafter Mulcahy"), whose data

were compiled by the Inter-University Consortium for Political

7 See Nie at 63; Mulcahy at 46.

8 Mulcahy at 48; see Nie at 94-95.

9 See Mulcahy at 48; Nie at 94-95.

The second factor compelling consideration is that the

right denied these plaintiffs is perhaps the most basic one

enjoyed by citizens of a democracy. As a matter of simple

fairness, individuals should not be excluded from participa-

tion in an integral stage of the process by which their rep-

resentatives and executives are chosen and should not be

forced to accept the choices made by their neighbors on

so important a-matter absent the most compelling of justi-

fications. At a time when increasing numbers of the

electorate are dissatisfied with existing institutions, includ-

ing the major political parties, and when fewer and fewer

people vote at all, those who seek to participate should

not be denied that right without careful examination of

their claims and of the basis for the justifications for ex-

clusion advanced by the State.

Il. THE CLAIMS MADE BY PLAINTIFFS INVOLVE

FUNDAMENTAL RIGHTS TO WHICH THE DIS-

TRICT COURT GAVE INADEQUATE CONSID-

ERATION AND THIS COURT SHOULD RE-

SOLVE THOSE CLAIMS ONLY AFTER FULL

BRIEFING AND ARGUMENT.

Plaintiffs’ principal argument is that section 9-431

forces them to choose between exercise of their funda-

mental rights to vote and to associate in support of parti-

cular candidates on the one hand, and exercise of their

fundamental rights to be free of coerced affiliation and to

10 Dissatisfaction with existing institutions, including the parties,

is described in Nie at 277-80 and in Mulcahy at 5-7; the same

point was emphasized in the brief filed by Senator Weicker below.

Brief of Amicus Curiae at 2, 9-10. For documentation of the

decrease in participation in elections, see Nie at 272-76; W. Sch-

neider & D. Yergin, "What If They gave an Election and Nobody

Came?" New Times 25, 33 (October 1, 1976).

maintain their privacy of association on the other. Im-

position of this choice violates the principle set out in

Dunn v. Blumstein, 405 U.S. 330, 342 (1972), where this

Court held that the State may not require its citizens to

forego exercise of one fundamental constitutional right

in order to enjoy another, unless it has a "compelling"

reason to justify its action. pg:

The District Court never dealt with this argument.

Although plaintiffs are totally excluded from the fran-

chise in a state-run election, the Court refused to recog-

nize any infringement of plaintiffs’ right to vote. More-

over, despite this Court's recent decision in Elrod v. Burns,

___ US. __, 45 U.S.L.W. 5091 (June 28, 1976), the

Court also found that plaintiffs had no right not to be

coerced into unwanted affiliation. Although deprivation

of either of these rights requires strict scrutiny under

precedents set by this Court,!! the court below errone-

ously applied a test which is appropriate only when the

exercise of constitutional rights remains unimpaired or,

at most, is only slightly burdened, and found that it was

met for reasons which do not withstand analysis.

A. The prior decisions of this Court clearly indicate

that the total exclusion of these plaintiffs from participa-

tion in primary elections infringes their right to vote. In

a long line of cases, this Court has held that under the

equal protection clause of the Fourteenth Amendment,

every citizen enjoys a fundamental right to vote, equal

to that of other citizens. E.g., Reynolds v. Sims, 377

U.S. 533 (1964). A number of decisions have recognized

that the reach of the equal: protection clause extends to

11 See note 13, infra. .

the right to vote in a primary. Rosaric v. Rockefeller,

supra; Bullock v. Carter, 405 U.S. 134 (1972); Gray vy.

Sanders, 372 U.S. 368 (1963). One of the basic princi-

ples articulated by this Court in protecting the right to

vote is that once the State has provided for popular elec-

tion, it may not exclude from the franchise voters ‘who

are as substantially affected and directly interested in the

matter voted upon as are those who are permitted to vote."

Cipriano v. Houma, 395 U.S. 701, 706 (1969); accord,

Hill v. Stone, 421 U.S. 289, 295-98 (1975); City of

Phoenix v. Kolodziejski, 399 U.S. 204, 207-13 (1970);

Kramer v. Union Free School District, 395 U.S. 621, 632-

33 (1969). All voters are affected in much the same

way by the results of the major parties’ primary elections

since the choice presented to everyone in the general

election is significantly narrowed. In addition, because

of the dominance enjoyed by the two major parties, one

of the two individuals selected is likely to be the voter's

next elected official.

Prior decisions of this Court make it equally clear

that plaintiffs also enjoy a right to associate in support

of a particular candidate and that full enjoyment of this

right is denied them by section 9-431. In Buckley vy.

Valeo, 424 U.S. 1 (1976), this Court upheld the Federal

12 These and the other cases cited above demonstrate the im-

propriety of the suggestion made by the District Court at the end

of its opinion that plaintiffs' attempt to vindicate their rights in

a judicial forum was inappropriate and that they and other inde-

pendent voters should restrict themselves to electing ''one or more

representatives in the legislature" to alter the election laws. (Mem.

Dec. at App. 24.) A significant number of this Court's decisions

bear witness to the fact that an individual may seek judicial review

of a state statute that infringes his voting rights or other political

rights, and that the Court was in error in suggesting the contrary.

Election Campaign Act's limitation on contributions to

candidates, despite the fact that the limitation burdened

“one important means of associating with a candidate."

Id. at 22. By contrast to the ability to contribute money

freely, which this Court viewed as a "narrow aspect of

political association," id. at 28, the ability to vote for a

candidate must be considered a central aspect of associa-

tional rights in light of Xusper v. Pontikes, supra, where

a statute requiring a voter to skip one year's primaries as

a price to pay to switch her affiliation to another party

was held to have violated her right to freedom of associa-

tion. 414 U.S. at 58. By denying plaintiffs here the

right to vote for particular candidates in primary elections,

the State severely curtails their right to associate fully in

support of those candidates.

The District Court's response to this argument con-

sisted of two related observations, neither of which justi-

fies the infringement of plaintiffs’ rights. First, the Court

noted that independents remain free to contribute time

and money to candidates of their choice, but it failed

to acknowledge that the same "freedom" existed in

Kusper and was found insufficient to sustain the statute.

414 U.S. at 58. The District Court also observed that

plaintiffs may support candidates selected by minor par-

ties or through petitions. Aside from the fact that in-

dependents may have absolutely no interest in associating

in support of such candidates, it should be noted that

under Connecticut law, all voters, including party members

who vote in primaries, may participate in these alternate

ways of selecting candidates. Conn. Gen. Stat. §9-451d.

To require independent voters to support such efforts or

none at all, while allowing party members wider choice

of political activity, is to deny independents equal protec-

tion.

The District Court's opinion was equally inadequate

in its treatment of plaintiffs’ right not to be coerced into

unwanted association. This right has most recently been

recognized in Elrod v. Burns, supra, where this Court held

that state officials may not condition retention of public

employment on affiliation with a political party. In con-

sidering this issue, the District Court failéd to mention

Elrod and concluded without detailed analysis that the

coercion of affiliation here was ‘simply not comparable"

to other types of improper coercion of belief. The sole

reason given by the Court for its holding was that the

political parties impose no affirmative obligations in terms

of time or money on enrolled party members. (Mem. Dec.

at App. 8-9.)

Mr. Justice Brennan's plurality opinion in Elrod makes

clear the principle that coercion of allegiance itself, quite

apart from any practical obligations imposed by the party,

violates an individual's rights. “Even a pledge of allegiance

to another party, however ostensible, only serves to com-

promise the individual's true beliefs."' Id. at 5094. See

West Virginia State Board of Education v. Barnette, 319

U.S. 624, 642 (1943). Affidavits filed by plaintiffs in

this case establish that each plaintiff's refusal to join a

political party is based on firm personal conviction and

political belief. (App. 28-30.) The District Court's hold-

ing indicates its lack of appreciation for the importance

of these convictions and beliefs.

A similar lack of understanding is reflected in the

Court's holding that plaintiffs could not claim violation

of their right to privacy of association because they had

not demonstrated ‘‘actual threats or incidents of harass-

ment. It is apparent that the reason plaintiffs do not

now suffer harassment as a result of affiliation with a party

is that they do not belong to a party. Faced with the

impermissible choice between their right of privacy and

other constitutional rights, plaintiffs chose to preserve

their privacy by not affiliating. In addition, whether or

not plaintiffs or other voters might suffer harassment by

virtue of party membership, opinions of this Court recog-

nize that privacy of association and other forms of privacy

of belief have an inherent value that warrants constitutional

protection. See Buckley v. Valeo, supra, 424 U.S. at 64-

66; id. at 237-38 (Burger, C.J., dissenting); Griswold v.

Connecticut, 381 U.S. 479, 483 (1965); Talley v. Califor-

nia, 362 U.S. 60, 64 (1960). If plaintiffs did succumb

to the statute and swear an allegiance they do not feel,

there can be little doubt that publication of a list identi-

fying them with a particular party would invade their

privacy.

By requiring plaintiffs either to affiliate with a

party or to forego voting in primary elections, section

9-431 forces them to choose between exercise of their

fundamental rights to be free of coerced association

and to maintain their privacy of association on the one

hand, and their fundamental rights to vote and to asso-

ciate in support of candidates on the other. This choice is

impermissible under the holding of Dunn v. Blumstein,

supra, where this Court invalidated one-year residency

requirement for voting because it forced an individual

to choose between exercise of two fundamental rights.

The District Court sought to distinguish Dunn on the

ground that enrolling with a party is not "beyond the

capabilities or powers of an elector to perform," thereby

implying that plaintiffs here have a power to retain their

full rights not shared by the plaintiff in Dunn. (Mem.

Dec. at App. 16.) This view misconstrues Dunn. Professor

Blumstein was capable of retaining either, but not both, of

his rights. He was free to exercise an uninterrupted right

to vote by not moving; if he moved to Tennessee, enjoying

his right to travel, the Tennessee statute required him to

surrender temporarily his right to vote. This Court held

that the state could not impose this choice without a ''com-

pelling'' reason. 405 U.S. at 342. This case is precisely anal-

ogous to Dunn. Plaintiffs can exercise their right to vote

if they are willing to be coerced into joining a political

party. Indeed, many voters who would prefer to be inde-

pendents may have already made this choice. Plaintiffs,

on the other hand, along with many other voters, have

chosen to maintain their independence and as a result have

been denied their voting rights. It is precisely this kind

ef "choice'’ which was struck down in Dunn and which

the District Court erroneously permitted here.

B. Despite the fact that the impermissible choice im-

posed on appellants by section 9-431 undeniably deprives

them of the power to exercise two fundamental rights, the

District Court refused to subject the statute to the exacting

scrutiny required under the holdings of this Court." In-

stead, finding the infringement of appellants’ rights ‘'mini-

mal'' at most, the District Court held the statute adequate

13 The test used in Dunn, which appellants contend is appropriate

here, requires the State to demonstrate that its statute furthers a

“compelling” state interest by the least drastic available means.

405 US. at 34243. This or a similar test would be required even

if the statute did not force appellants to choose between funda-

mental rights, but merely conditioned exercise of either right on

the surrender of another interest of non-constitutional dimension.

Elrod v. Burns, supra, 45 US.L.W. at 5096 (freedom of association);

Hill v. Stone, supra, 421 US. at 297-98 (right to vote); see Buckley

v. Valeo, supra, 424 US. at 25 (right to associate with candidates);

id. at 64-65 (privacy of association).

as promoting “legitimate state goals." (Mem. Dec. at App.

21.) In describing the goals which it held to be "‘legiti-

mate," the District Court gave undue weight to the argu-

ments advanced by appellees because it failed to recognize

a number of crucial distinctions argued by appellants.

Initially, it failed to confront appellants’ argument that

when an organization that is "private" and "voluntary"

for some purposes becomes involved in state action, it

loses its First Amendment associational rights to the ex-

tent that it acts under color of state law.

The District Court held that party members have

associational rights which protect them from interference

by other individuals and that the State has the power —

indeed a virtual duty — to provide "affirmative protection

of their associational rights.'' (Mem. Dec. at App. 6-7,

10-12.) Appellants acknowledge that the associational

rights of party members may protect them from some

forms of governmental interference. Cousins v. Wigoda,

419 U.S. 477 (1975). However, when a State intervenes

to protect and to benefit private associations, members

of those associations surrender their associational rights

to the extent that they enjoy the protections and the

benefits conferred by the State. If the combined ac-

tions of State and association deprive others of their

constitutional rights, the association is subject to the

constraints of the Fourteenth Amendment. Gilmore v.

City of Montgomery, 417 U.S. 556, 575 (1974); see

Norwood v. Harrison, 413 U.S. 455, 470 (1973); Note,

"State Action: Theories for Applying Constitutional

Restrictions to Private Activity,'' 74 Colum. L. Rev.

656, 659 (1974).

The District Court also failed to distinguish between

the associational interests of the political parties and

the governmental interests needed to sustain the statute.

When a state intervenes to protect and benefit private

associations, it must have a public purpose for doing so.

As Mr. Justice Brennan stated in Elrod v. Burns, ''care

must be taken not to confuse the interest of partisan or-

ganizations with governmental interests. Only the latter

will suffice [to justify state action]."" 45 U.S.L.W. at

5096. This Court has never held that a State's assertion

of a vested interest in preserving the existence, influence

or composition of the two present political parties is

sufficient to overcome fundamental rights of non-members.

The Court's decisions upholding statutes which favor the

two major parties, or impose burdens on minor parties

or independent candidates, have rested on a legitimate

governmental interest in maintaining the stability of the

selection process, not on the hope of preserving the pre-

dominance of the Democrats and Republicans. Thus, the

State may attempt to see that general election winners

have the support of a majority or near majority of citi-

zens, that factionalism is not rampant, and that campaign

financing flows more readily to those whose messages

are more likely to be attended. See Buckley v. Valeo,

supra, 424 U.S. at 96; Storer v. Brown, supra, 415 U.S.

at 733-36; American Party of Texas v. White, supra, 415

U.S. at 781-84; Bullock v. Carter, supra, 405 U.S. at 145;

Jenness v. Fortson, supra, 403 U.S. at 442. But it

may not deny minor parties or independent candidates

a realistic opportunity to gain access to the ballot or dis-

criminate against legitimate candidates. Storer v. Brown,

supra, 415 U.S. at 739-40; Bullock v. Carter, supra, 405

U.S. at 145-47; Williams v. Rhodes, 393 U.S. 23, 31-32

(1968). Nor may it entrench “one or a few parties to

the exclusion of others."" Elrod v. Burns, supra, 45

U.S.L.W. at 5098; accord, Williams v. Rhodes, supra, 393

U.S. at 32.

It is not altogether clear what governmental purpose

is served by excluding independents from primary elec-

tions. The District Court suggested that the Connecticut

statute shielded the parties from "intrusion by those with

adverse principles.'' Such a concept presumes that it is

possible to determine what a party's principles are. But

the goals and philosophies of the major political parties

are kept purposefully vague and indeterminate, in order

to attract the widest possible support. Furthermore, the

parties make no attempt to screen potential members to

ensure that they adhere to the few vague principles that

may be identified in party platforms or other documents.

Indeed, any registered voter in Connecticut may affiliate

with either major party without a test of his loyalty or

principles. It is impossible to distinguish between such

a voter and an independent voter in terms of his loyalty

to the goals and principles pursued by a party. More-

over, the parties stated below that they would welcome

plaintiffs to their ranks if they would only undergo ''the

mechanical process of affiliation." (Def. Parties Mem.

14 The vaguen *s of party principles and the heterogeneity of

party members also make improbable the District Court's conclu-

sion, derived without apparent factual support, that the "party labels’

affixed to candidates by primary elections serve as useful guides to

a candidate's positions on issues. Studies of voter behavior suggest

that to the extent the party label has ever been used by voters in

deciding whom to support, the important factor has been simply

that the candidate belongs to the same party as the voter. See

Nie, supra note 6, at 48. So long as party membership may be

required of candidates — a requirement not challenged by plaintiffs

in any way — the ability use labels in this manner will remain.

Cf. Ray v. Blair, 343 U.S. 214 (1952) (loyalty oath for candidate).

In addition, studies indicate that fewer voters now rely on party

identification as a factor in casting their ballots. See Nie at 55-57.

at 19.) Unfortunately, the process is not ''mechanical"

for these plaintiffs. Reliance on the fact of party enroll-

ment begs the question of whether or not independents

have principles ''adverse'’ to those of party members. If,

as this Court has observed, ‘most voters'’ enroll with a

party in order ''to gain a voice in [the] selection process,"

Kusper v. Pointikes, supra, 410 U.S. at 58, then party

enrollment by itself indicates very little about devotion

to the party or constancy in support of its candidates.

With regard to the State's interest in preventing de-

ceptive or fraudulent conduct, it is simply not realistic

to fear that independent voters will engage in fraudulent

conduct such as "raiding,'’ as the State indeed acknowl-

edges in its statutory scheme. This Court has defined

raiding as ''the practice whereby voters in sympathy with

one party vote in another's primary in order to distort

that primary's results.'' Kusper v. Pontikes, supra, 414

U.S. at 59; see Rosario v. Rockefeller, supra, 410 U.S. at

760. The considerations involved in Kusper and Rosario,

where there was a real possibility that partisans of one

major party might attempt to change affiliation to the

other, are very different from those involved in this case.

Independent voters are least likely of all groups to en-

gage in raiding. By definition, they are not party parti-

sans; thus, they are unlikely to throw away an opportun-

ity to cast an affirmative ballot in order to help one

party defeat another.

The State of Connecticut has recognized this fact in

its statutory scheme, since it allows independent voters

to enroll with a party and to vote in a primary at any

time except within 17 days of the primary. By contrast,

voters enrolled in one party must wait six months before

they are allowed to vote in another party's primary. Conn.

Gen. Stat. 89-56, 9-59. The District Court held that this -

17-day period was designed to deter raiding by indepen-

dents and was ‘sufficient to demonstrate that a previously

independent voter will not, in voting, engage in disruptive

or deceptive conduct." (Mem. Dec. at App. 16.) But a

waiting period does not ‘‘demonstrate'’ anything about

those made to wait. Its purpose is to make partisans de-

cide the primary in which they want to vote at a time

before they can determine whether or not it would be

advantageous to raid the other party's primary. See

Rosario v. Rockefeller, supra, 410 U.S. at 760-61.

Whereas candidates and issues are apt to be obscure six

months before an election, making the planning of a raid

more difficult, they are usually clearly defined three weeks

before voting occurs. If independents wished to ‘'raid"

the parties, it would be easy for them to do so under

existing law, for they would only have to swear an alle-

giance they do not feel — not a forn.idable hurdle for

persons who intend to vote falsely, but an impossible

task for persons who are unwilling to simulate political

affiliation. It is fair to conclude, therefore, that section

9-431 is not designed to deter raiding by independent

voters. Although a State may lawfully impose limited

durational requirements to prevent raiding, it may not for

the same purpose impos. a total bar against participation

by independent voters in state-run, state-financed primaries.

The District Court's failure to appreciate this distinction

is another reason for this Court to note probable juris-

diction.

CONCLUSION

Conn. Gen. Stat. 89-431 denies appellants their

fundamental rights by forcing them into a constitutionally

impermissible choice. The scope of the voting and asso-

ciational rights at issue in this case have not been pre-

viously considered by this Court in the context presented

here. Nonetheless, prior decisions of this Court indicate

that the District Court has impermissibly narrowed and

undervalued appellants’ rights. Accordingly, this Court

should set this case for full briefing and argument to

review the question presented.

Respectfully submitted,

LINDA F. DONALDSON

ALAN B. MORRISON

Suite 700

2000 P Street, N.W.

Washington, D.C. 20036

(202) 785-3704

Attorneys for Petitioners

October 8, 1976

APPENDIX

July 20, 1976

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

NATHRA NADER and

ALBERT C. SNYDER, JR.

vs. : NO. H-76-20

GLORIA SCHAFFER, Secretary -

of the State of Connecticut; .

DEMOCRATIC PARTY OF THE :

STATE OF CONNECTICUT and -

REPUBLICAN PARTY OF THE -

STATE OF CONNECTICUT :

JUDGMENT

The above-identified action came on for consideration

before a three-judge district court; the Honorable Robert

P, Anderson, United States Circuit Judge, and the Honor-

ables T. Emmet Clarie and M. Joseph Blumenfeld, United

States District Judges, presiding; and,

This cause having been fully heard and a decision hav-

ing been rendered denying the Plaintiffs’ Motion for Sum-

mary Judgment and granting the Defendants’ Motion to

Diemies

It is accordingly ORDERED and ADJUDGED that the

Plaintiffs’ Complaint be and is hereby dismissed.

Dated at Hartford, Connecticut, this 20th day of July,

1976.

SYLVESTER A. M/A.RRKOWSKI

Clerk, United Stai District Court

- William D. T

puty

A-2

[Filed: July 14, 1976)

- MEMORANDUM OF DECISION

Before: ANDERSON, Circuit Judge, CLARIE, Chief Dis-

trict Judge, and BLUMENFELD, District Judge.

ANDERSON, Circuit Judge:

Plaintiffs, Nathra Nader and Albert C. Snyder, Jr., are

residents of Winchester, Connecticut. Each has registered

as a voter pursuant to Conn. Gen. Stat. § §9-20 and 9-21.

The basis for this action, brought under 42 U.S.C. §1983,

with jurisdiction based on 28 U.S.C. 881343(3) and 1343(4),

to redress the alleged deprivation, under color of state

statute, of certain voting and associational rights guaran-

teed by the federal Constitution, is that plaintiffs refuse

to enroll in a political party pursuant to Conn. Gen. Stat.

§9-56 or 9-59 and are, therefore, prohibited from voting

in any party primary elections. Because the complaint

seeks an order restraining the enforcement of Conn. Gen.

Stat. §9-431 on the grounds of its alleged unconstitution-

ality, and because the constitutional question raised is not

"insubstantial," this three-judge court was convened. 28

U.S.C. §2281; Goosby v. Osser, 409 U.S. 512 (1973).

Plaintiffs have moved, with supporting affidavits, for sum-

mary judgment. Defendants, the Secretary of the State

of Connecticut, and the Republican and Democratic Par-

ties of Connecticut, have moved to dismiss the complaint.

The motion to dismiss is granted and the motion for sum-

mary judgment is denied.

Connecticut Gen. Stat. §9-431 provides in pertinent

part:

"Eligibility to vote at primary. No person shall

be permitted to vote at a primary of a party

A-3

unless he is on the last-completed enrolment list

of such party in the comgee or voting dis-

trict, as the case may be .

Plaintiffs’ complaint alleges that the actions of the defend-

ant Secretary of the State’ and her agents in enforcing

§9-431, pursuant to § §9-3, 9-4, 9-5, and 9-439, violate

plaintiffs’ rights in the following manner: (1) by denying

them the right to vote in primary elections while extend-

ing this right to enrolled party members, deprives plaintiffs

of their Fourteenth Amendment right to equal protection

of the law; (2) by compelling them either to enroll in a

political party or forego a right to vote in a primary elec-

tion impermissibly forces plaintiffs to choose between a

right to vote, on the one hand, and the right freely to

associate for the advancement of political ideas, on the

other; the latter includes the right to associate with a par-

ticular candidate regardless of the candidate's party affili-

ation; and (3) infringes plaintiffs’ right to vote, as guaran-

teed by Article I, Section 2, cl. 1 and the Fourteenth and

Seventeenth Amendments, by preventing plaintiffs from

participating in an “integral part" — the primary elections

— "of the process by which their United States Senators

and Representatives are chosen."

They allege further that "primary elections . . . consti-

tute an integral part of the process established by the

State of Connecticut for selecting individuals who will re-

present and govern plaintiffs in federal, state and local

office," and therefore request an order declaring that §9-

431 is unconstitutional insofar as it prohibits them from

voting in primary elections; and enjoining the Secretary of

the State from enforcing §9-431 so as to prohibit them

from so voting.”

Connecticut's Primary Election System

Connecticut law divides potential candidates for office

into three categories: those of "major parties," those of -

"minor parties," and independents or "petitioning parties.

The candidates of the major and minor parties are afford-

ed spaces on the ballot for the general election; other can-

didates may have their names appear on the ballot by ful-

filling the petition requirements of § §9-453a through

9-453s. Conn. Gen, Stat. §9-379.

Initially, state or district conventions, as the case may

be, of a major party "choose a candidate for nomination

to each state or district office" through a "challenge prt

mary" system. Conn. Gen, Stat. §9-382. Party candi-

dates for municipal office, members of party town com-

mittees, and delegates to party conventions, are chosen in

each municipality, according to rules prescribed by the

party, either by a party caucus, a party convention, OF

the town committee. Conn. Gen. Stat. §9-390. If the

candidate so chosen is not opposed, he becomes the party's

candidate in the general election, and no primary election

is held. Conn. Gen. Stat. § §9-408 and 9-409. A non-

endorsed candidate, however, may force a primary if he

meets the three criteria specified in Conn. Gen. Stat. §9-

400, which are that he must (1) have received at least

twenty percent of the votes of the delegates to the party

convention present and voting on any roll call; (2) deposit

with the Secretary of the State a sum of money equal to

five percent of the salary of the office he seeks; and (3)

file with the Secretary of the State a petition bearing

signatures of a certain number of enrolled party members

residing in the jurisdiction under contest, as specified by

§9-400. (For example, a challenger for a statewide office

A-5

would require 5000 signatures; a challenger for a congres-

sional district office would require 2000 signatures.) It

should be noted that plaintiffs seek to participate only in

this last step of the nominating process, ie,, the primary

election to choose candidates for public offices; they do

not seek to participate in party caucuses or conventions,

or in the selection of town committee members or con-

vention delegates. |

Minor parties are required only to nominate their candi-

dates in a manner prescribed in the party's own rules,

which must be filed with the Secretary of the State.

Conn, Gen. Stat, §9-451. Candidates not nominated by

either a major or minor party can get on the ballot by

presenting to the Secretary of the State a petition bearing

signatures equal to one percent of the votes cast for the

same office at the last preceding election. Conn. Gen.

Stat. §9-453d.

Enrollment in a political party is, as plaintiffs assert, a

public act of affiliation with the party, at least insofar as

the voter is required by Conn. Gen, Stat. §9-56 to appear

before the registrar of voters, approximately eighteen days

before the election, and execute a form giving his name,

address, desired party affiliation, any affiliations or requests

for affiliations (enrollments) with other parties within the

previous six months and the date on which any application

had been made for erasure from enrollment in any party,

Conn. Gen, Stat. §9-56; and the enrollment lists are pub-

lic records, Conn, Gen, Stat. §9-55. An unaffiliated voter

may enroll in a party and participate in a primary election

as late as the third Saturday before its occurrence. Conn.

Gen, Stat. §9-56. A voter who is enrolled in a party may

at any time apply for erasure from that party's enrollment

A-6

list, and for transfer to the enrollment list of another

party, but he may not vote in any primary for six months

following the date of the application for transfer. Conn.

Gen, Stat. §9-59.

DISCUSSION

Plaintiffs’ principal argument‘ is that participation in a

primary election is an exercise of the constitutionally pro-

tected right to vote and of the constitutionally protected

right to associate with others in support of a candidate.

They also assert that to the latter there is a constitution-

ally protected correlative right nof to associate, and to be

free from coerced association. They further claim a con-

stitutionally protected right of privacy of association.

Plaintiffs wish to exercise both of these claimed sets of

rights, but §9-431 limits them to one or the other; that

is, in order to vote in a party's primary election, plain-

tiffs must enroll in the party, while on the other hand, if

they maintain their stand against enrollment, they are

precluded.

The fact that plaintiffs do not enroll in the Democratic

or Republican Parties does not prevent them from working

in support of or contributing money to their favorite

candidates within these Parties or candidates in other major

or minor parties; or from giving such support to indepen-

dent candidates, including themselves. Moreover the plain-

tiffs are not prevented from signing the petitions of in-

dependents or participating in a minor party's candidate

selection process as it is established by the party's rules

under §9-451. Connecticut's voting laws clearly provide

avenues for supporting candidates of one's persuasion with-

out affiliating with an established "major" political party.

A-7

Plaintiffs argue that the alternative avenues of political

activity open to them under Connecticut law are ineffectual

and unrealistic, since in most general elections, only the

Democratic and Republican nominees have reasonable pro-

babilities of success. While plaintiffs’ contention may

generally hold true for national and many statewide elec-

tions, both minor party and independent candidates may

reasonably anticipate a measure of success in local elections.®

In any event, any dominant position enjoyed by the Demo-

cratic and Republican Parties is not the result of improper

support, or discrimination in their favor, by the State.

Rather, the two Parties enjoy this position because, over

a period of time, they have been successful in attracting

the bulk of the electorate, so that they now have sub-

stantial followings.

A "major party” embraces a substantial fraction of the

total electorate, who have associated together for the pur-

pose of nominating and working for the election of candi-

dates who, as officeholders, will implement the members’

political views, "Success" in this endeavor, such as the

major parties have achieved, is the ultimate goal of the

members’ political activities, and does not necessarily call

for strict constitutional scrutiny by the judiciary so as to

increase the political strength of those who have not

actively attempted to advance their political views.

Improper State support for the Democratic and Re-

publican Parties cannot be inferred from the fact that

their primary elections are closely regulated by statute.

In the past, many political nominations were made by a

process which both the plaintiffs and amicus curiae®

briefs have described as the "smoke-filled room." Many

states, such as Connecticut, have enacted statutes calling

A-8

for nomination by primary election, presumably because

they find it beneficial to allow the general party member-

ship a voice in the nominating process. See Bullock vy,

Carter, 405 U.S. 134, 148 (1972). The states also recog-

nize the frequency of electoral success achieved by the

Democratic and Republican Parties, and the desirability of

having a regularized system for making these Parties’ nomi-

nations, which are so important to the ultimate selection

of governmental leaders. Each state legislature chooses the

primary election scheme that it thinks will best promote

democratic, electoral and governmental goals. In Connec-

ticut, major party primaries are the subject of detailed

regulation, while the nominating processes of minor and

petitioning parties are more loosely controlled; this re-

flects the fact that the State is particularly concerned

with the parties which have demonstrated some probability

of success in the general election and whose candidates

may become holders of public office. Cf. Buckley y,

Valeo, U.S. . , 44 U.S.L.W. 4127, 4155

(U.S., Jan. 30, 1976), and Jenness v, Fortson, 403 U.S.

431, 442 (1971) (legislature can require candidate to

demonstrate a "significant modicum of support" before,

respectively, distributing public funds to him, or placing

his name on the ballot).

Further there is at least plurality in Connecticut — it

is not a "one-party" state — and thus no one party's pri-

mary election is completely determinative of the outcome.

Compare United States v, Classic, 313 U.S, 299 (1941).

With regard to the claimed right not to associate, it is

true that, in order to vote in a party's primary, plaintiffs

must publicly affiliate with that party. But enrollment in

Connecticut imposes absolutely no affirmative party obli-

gations on the voter, in terms of time or money, and it

A-9

does not even obligate him to vote for the party's posi-

tions or candidates or to vote at all. The voter's name,

however, may be erased from the party's enrollment list

on a proper showing that he does not support the party's

principles or candidates. Conn, Gen. Stat. § §9-60, 9-61;

but in actual practice these statutes are not used. Such

limited public affiliation is simply not comparable to the

coerced orthodoxy imposed by government officials in the

cases cited by plaintiffs, such as West Virginia State Board

of Education v. Barnette, 319 U.S. 624 (1943); and

Russo v, Central School District No. 1, 469 F.2d 623 (2

Cir. 1972), cert. denied, 411 U.S. 932 (1973). (Even if it

is assumed that some affiliation is "coerced" by §9-431,

the voter at least may choose his party, whereas in the

cases just listed there was no such choice.)

Plaintiffs also claim that the public nature of enrollment

violates their right to privacy of association by potentially

subjecting them to harassment because of their affiliations

with a party. It is insufficient, however, for plaintiffs

merely to raise the spectre of harassment; instead, they

must make a detailed factual showing of actual threats or

incidents of harassment. Compare Buckley v, Valeo, supra,

44 U.S.L.W. at 4147-48 with NAACP v, Alabama, 357

U.S. 449, 462 (1958). Cf. Doe v, Martin, 404 F. Supp.

753 (D.D.C, 1975) (three-judge court); Laird v. Tatum,

408 U.S. 1 (1972) (allegations of subjective "chill" are

not an adequate substitute for a claim of presently exist-

ing, specific harm or a threat of specific future harm to

plaintiff, so as to create a case or controversy in suit

challenging Army's intelligence-gathering activities). At

least one form of potential harassment suggested by plain-

tiffs — loss of civil service employment due to political

affiliation — cannot necessarily be considered a realistic

A-10

threat since this practice was recently declared unconstitu-

tional by the Supreme Court, as least as to patronage em-

ployees in non-policymaking positions. Elrod v, Burns,

U.S. , 44 U.S.L.W. 5091 (U.S., June 28, 1976).

The State, plaintiffs assert, may not force them to com-

ply with §9-431 unless the State establishes that it "serves

a compelling state interest by the least drastic means

available," citing Dunn v. Blumstein, 405 U.S, 330 (1972),

and that "No state interest served by Conn. Gen. Stat.

§9-431 is sufficiently compelling to justify depriving

plaintiffs of their constitutional rights."

A political party, however, is a voluntary association,

instituted for political purposes, with the goal of effectu-

ating the will of its members. Ray v. Blair, 343 U.S. 214,

222 n. 9 (1952); Alcorn ex rel. Dawson v, Gleason, 10

Conn. Supp. 210, 217 (Hartford County Court of Common

Pleas 1941); see also Fields v, Osborne, 21 A, 1070, 1071,

60 Conn. 544 (1891). The party's ultimate goal, in the

electoral process, is to obtain control of the. levers of

government by winning elections, so that it may then put

into operation its policies and philosophies. See Ripon

Society v, National Republican Party, 525 F.2d 567, 585

(D.C. Cir. 1975) (en banc); Comment, 40 U. CHI. L.

REV. 636, 654 (1973); Note, 27 RUTGERS L. REV. 298,

303-05 (1974). Plaintiffs agree with this description of

political parties; they state that it is a function of parties

"to form coalitions of interest groups, providing their mem-

bers access to power and facilitating the passage of legis-

lation once a party has achieved office." In order to

accomplish this goal, the party seeks to nominate those

candidates who are most likely to win the general election,

while remaining most faithful to the party's (i.e., its

A-11

members’) policies and philosophies. The party's selection

of its candidates therefore is an ultimate and crucial

element of the party members’ political activities.

Because the political party is formed for the purpose of

engaging in political activities, constitutionally protected

associational rights of its members are vitally essential to

the candidate selection process. Cousins v, Wigoda, 419

U.S. 477, 487 (1975); O'Brien v, Brown, 409 U.S. 1, 4

(1972) (per curiam); Ripon Society v, National Republican

Party, supra; Note 27 RUTGERS L. REV. 298 (1974),

The Ripon Society case notes that party members also

have a “right to organize a party in the way that will

make it the most effective political organization," 525

F.2d at 586. An attempt to interfere with a party's

ability so to maintain itself is simultaneously an interfer-

ence with the associational rights of its members, id, at

585; see also Buckley v, Valeo, supra, 44 U.S.L.W. at

4133, and Cousins v, Wigoda, supra, 419 U.S. at 487-88,

all of which cite Sweezy v, New Hampshire, 354 U.S.

234, 250 (1957) (plurality opinion), The rights of party

members may to some extent offset the importance of

claimed conflicting rights asserted by persons challenging

some aspect of the candidate selection process. 525 F.2d

at 588; see also Cousins v. Wigoda, supra, 419 U.S. at

487. More importantly, party members are entitled to

affirmative protection of their associational rights, see

Note, 27 RUTGERS L. REV. 298 (1974). A party, were

it a completely private organization with no government

regulation, could limit participation in its nominating

process to party members, In the regulated situation, the

state has a legitimate interest in protecting party members’

associational rights, by legislating to protect the party

"from intrusion by those with adverse political principles."

A-12

Ray v. Blair, supra, 343 U.S. at 221-22; see also Lippitt

v. Cipollone, 337 F. Supp. 1405, 1406 (N.D. Ohio 1971)

(three-judge court) (per curiam), aff'd mem., 404 U.S. 1032

(1972); Green v. State of Texas, 351 F. Supp. 143, 145

(N.D. Tex. 1972) (three-judge court) (per curiam).

In addition to protecting the associational rights of party

members, a state has a more general, but equally legiti-

mate, interest in protecting the overall integrity of the

historic electoral process. This includes preserving parties

as viable and identifiable interest groups; insuring that the

results of primary elections, in a broad sense, accurately

reflect the voting of party members. Parties should be

able to avoid primary election outcomes which will con-

fuse or mislead the general electorate to the extent it

relies on party labels as representative of certain ideologies;

and preventing fraudulent and deceptive conduct which

mars the nominating process. See generally Note, 27

RUTGERS L. REV. 298 (1974), and Comment, 40 U.

CHI. L. REV. 636 (1973). The Supreme Court has recog-

nized the legitimacy of this state interest in decisions such

as Rosario v. Rockefeller, 410 U.S. 752 (1973); Storer v.

Brown, 415 U.S. 724 (1974); and American Party of Texas

v, White, 415 U.S. 767 (1974).

These well established principles are applicable here.

Ray v. Blair, supra, involved an Alabama primary election

system regulated by state statute and carried out at state

expense. State party executive committees were given the

power to fix political or other qualifications of party

members and candidates. The Democratic Party required

candidates for Party nomination to sign a piedge stating

they would aid and support the Party's ultimate nominees.

This was challenged on equal protection, due process, and

A-13

other constitutional grounds, but the Supreme Court up-

held the pledge requirement and stated that it 'protect[ed]

a party from instrusion by those with adverse political

principles," 343 U.S. at 221-22, and that "A state's or a

political party's exclusion of candidates from a party pri-

mary because they will not pledge to support the party's

nominees is a method of securing party candidates in the

general election, pledged to the philosophy and leadership

of that party," id. at 227. In specifically disposing of the

equal protection and due process claims, the Court stated,

id, at 226 n. 14:

"[T] he requirement of this pledge, unlike the

requirement of color, is reasonably related to a

legitimate legislative objective — namely, to pro-

tect the party system by protecting the party

from a fraudulent invasion by candidates who

will not support the party .... In facilitating

the effective operation of democractic govern-

ment, a state might reasonably classify voters

or candidates according to party affiliations... .

This requirement of a pledge does not deny

equal protection or due process."

Although, as plaintiffs note, Ray v. Blair, involved a party

lovaity oath for candidates for party office, not one for voters

in a party election, but the language and reasoning of the

Court's opinion imply the validity of a similar requirement,

binding members of a party to vote only for a party mem-

ber as the party's candidate, to run in the ensuing national,

state, county or municipal election. Any elector in Connec-

ticut may, however, in the subsequent general election vote

for any party's candidate or an independent, as he chooses,

and there is no way to compel him to disclose for whom

he voted.

A-14

Relying on Ray v. Blair, a three-judge court in Lippitt

v, Cipollone, supra, 337 F.Supp. at 1406, upheld Ohio

statutes designed to prevent raiding of one party by mem-

bers of another party, and to preclude candidates from al-

tering their political party affiliations for opportunistic

reasons. The court stated that the protection of parties

(within their respective party organizations) from intrusion

by those with adverse political principles was a legitimate

legislative goal.

The Supreme Court ruled in Storer v. Brown, supra,

that California could bar from the ballot an independent

candidate who within the previous year had been a mem-

ber of a party; this law did not discriminate against such

independent candidates, because candidates for party nom-

ination were similarly disqualified if they belonged to a

different party within the previous year. 415 U.S. at

733-34. In both Storer, 415 U.S. at 740-41, and Ameri-

can Party of Texas v. White, supra, 415 U.S. 767, the

Court upheld state laws which barred voters who had al-

ready participated in a party’s nominating process from

signing the nominating petitions of other parties.

A three-judge court in Green v. State of Texas, supra,

at 145, held constitutional certain sections of the Texas

Election Code which “prohibit electors who vote for a

candidate for one office in a particular party primary

from voting in another party primary for a candidate run-

ning for a different office.”” The court stated:

“Far from abridging federal rights, the Texas

statutes here under review serve to protect the

political rights of Texans to join political par-

ties and to enjoy the free right of association

appurtenant thereto with some protection against

A-15

raids and interference from independents or mem-

bers of other political parties.”

In Rosario v. Rockefeller, supra, the Supreme Court

upheld New York’s “delayed enrollment” scheme which

barred voters from participation in a primary election un-

less they were enrolled in the party prior to the preceding

general election — a requirement which resulted, in prac-

tice, in “waiting periods” of up to eleven months. Affirm-

ing a decision of the Second Circuit, 458 F.2d 649 (1972),

the Court ruled that this scheme was properly tailored to

prevent “raiding,” a practice “whereby voters in sympathy

with one party 4 designate themselves as voters of an-

other party so as to influence or determine the results of

the other party’s primary,” 410 U.S.C. at 760. The

scheme, therefore, was tied to the “legitimate and valid

state goal” of “preservation of the integrity of the elec-

toral process.” Jd. at 761.

As we have noted, the phrase “preservation of the in-

tegrity of the electoral process” contemplates, in the

nominating context, the assurance that primary election

results reflect the will of party members, undistorted by

the votes of those unconcerned with, if not actually hos-

tile to, the principles, philosophies, and goals of the party.

The phrase contempates the prevention of fraud in the

nominating process, and a candidacy determined by the

votes of non-party members is arguably a fraudulent can-

didacy. See Rosario v. Rockefeller, 458 F.2d 649, 652

(2 Cir. 1972), aff'd, 410 U.S. 752 (1973).

It is clear from these cases that, in order to protect

party members from “intrusion by those with adverse

political principles,” and to preserve the integrity of the

electoral process, a state legitimately may condition one’s

A.16

participation in a party’s nominating process on some

showing of loyalty to that party, and that is precisely

what Connecticut does in 89-431. The enrollment proc-

ess of 89-56 is not particularly burdensome, and it is a

minimal demonstration by the voter that he has some

“commitment” to the party in whose primary he wishes

to participate. It does not constitute anything in the

nature of an absolute barrier to voting in a primary elec-

tion because it is beyond the capabilities or powers of an

elector to perform as was the case in Dunn v. Blumstein,

405 U.S. 330 (1972) (one-year residency requirement),

and Smith v. Allwright, 321 U.S. 649 (1944) (blacks

barred from participation in primary elections). Compare

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

plaintiffs choose not to associate, by not enrolling in a

party, their right to vote in the general election is unaf-

fected. Cf. Ripon Society v. National Republican Party,

supra, at 586, 588-89.

Plaintiffs argue that 89-431 does not accomplish legiti-

mate state goals because the “waiting period” for persons

who are independent voters, is less than three weeks, and

this is an insufficient period to deter fraudulent or de-

ceptive conduct by those planning it. But this argument

goes only to the length of the waiting period, and not

to the method used. The Connecticut legislature has

determined that enrollment approximately three weeks

before the primary election is sufficient to demonstrate

that a previously independent voter will not, in voting,

engage in disruptive or deceptive conduct inconsistent

with the associational rights of other party members and

the preservation of the integrity of the nominating proc-

ess. The legislature has, with some logic, imposed a

longer waiting period on voters previously enrolled in

A-17

other parties, as they are perhaps more likely to have a

hostile motivation. We fail to see how plaintiffs’ position

gains any support from the Connecticut legislature’s de-

cision not to impose the maximum waiting periods per-

mitted by the Constitution.

Plaintiffs’ claim that Connecticut could prevent raiding

and other distortive and deceptive conduct by a less dras-

tic means, namely, criminal sanctions against the per-

petrators, is not persuasive. Assuming arguendo that the

“least drastic means” test applies here, that standard does

not require the State to choose ineffectual means to ac-

complish its goals. Storer v. Brown, supra, 415 U.S. at

736. Rosario v. Rockefeller, supra, 410 U.S. at 762 n.

10. Although criminal sanctions might be effective to

punish the ringleaders of any raiding episode, it would

be very difficult to detect and punish all the individual

voters who engaged in the proscribed conduct, particularly

given the secrecy of the ballot and the difficult specific

intent issues which would be involved. See Note, 27

RUTGERS L. REV. 298, 311 (1974). Unless the deter-

rent aspect of the criminal law were totally effective, such

a law would apply only after the damage had been done

to the electoral process and would be in the nature of

punishment not remedy.

The State obviously cannot conduct a test on each

voter to determine his political ideas before allowing him

to vote in a primary election, and the enrollment require-

ment of §9-431 is a constitutionally acceptable surrogate.

And given the State’s legitimate interest in legislating to

protect the associational rights of party members, which

rights include the right to put forward candidates who

adhere to and symbolize the party’s views, 89-431 recog-

nizes the simple fact that, “No matter how loyal the

A-18

nominee, if he is chosen by those not in sympathy with

the party, he is not that party’s nominee.” Note, 27

RUTGERS L. REV. 298, 311 n. 106 (1974). Cf. Bend-

inger v. Ogilvie, 335 F. Supp. 572, 576-77 (N.D. Ill. 1971)

(three-judge court).

From the party’s point of view, enrollment also serves

an important housekeeping function. Candidates need to

know who is in the electorate, so that they (the candidates)

can attempt to persuade those individuals to vote for them.

Party members who wish to establish, as party policy, a

particular course of conduct through the election of a

particular candidate, similarly need to know who their

supporters are. It is common experience that direct

solicitation of party members — by mail, telephone, or

face-to-face contact, and by the candidates themselves

or by their active supporters — is part of any primary

election campaign. But, without the public list of party

members which is provided by the enrollment process,

such electioneering would become quite difficult. The enroll-

requirement of §9-431, coupled with the three-week waiting

period of §9-456, allows compilation of a list — at the start

of the final, crucial weeks of campaigning — of the concerned

electorate.

Plaintiffs also argue that 89-431 deprives them of the

equal protection of the laws by denying to them the

right to participate in elections in which they are “in-

terested” and by which they are “affected,” to the same

extent as those persons who may vote, solely because

plaintiffs do not enroll in political parties. Authority

cited in support of this argument includes Hill v. Stone,

421 U.S. 289, 295-98 (1975); City of Phoenix v. Kolod-

ziejski, 399 U.S..204, 207-13 (1970); Cipriano v. City of

A-19

Houma, 395 U.S. 701, 706 (1969) (per curiam); and

Kramer v. Union Free School District, 395 U.S. 621, 632-

33 (1969). Although plaintiffs are “interested” in and

“affected” by the ultimate selection of their governmental

leaders, they are not “interested” in primary elections in

the crucial, distinguishing aspect that party members are

interested. Namely, plaintiffs are not “interested” in

nominating the candidate who presents the best chance

of winning the general election while remaining most

faithful to party policies and philosophies. Plaintiffs’

refusal to join any of these voluntary associations, which

are organized for the purpose of effectuating their mem-

bers’ political goals, is fundamentally inconsistent with

any claim that plaintiffs are as “interested” as party mem-

bers in the outcome of the party nominating process.

The constitutional validity of this distinction between en-

rolled party members and all other voters, on which §9-

431 is based, is at least implicit in the Supreme Court’s

flat statement in Ray v. Blair, supra, that “a state might

reasonably classify voters or candidates according to party

affiliations.” Section 9-431, therefore, does not make an

“invidious discrimination” which would offend the Con-

stitution, American Party of Texas v. White, supra, 415

U.S. at 781; Jenness v. Fortson, 403 U.S. 431 (1971);

Lippitt v. Cipollone, supra, 337 F. Supp. at 1406. Cf.

Pirincin v. Board of Elections of Cuyahoga County, 368

F. Supp. 64, 70 (N.D. Ohio) (three-judge court), aff'd

mem., 414 U.S. 990 (1973):

“[T]o the extent Ohio’s election laws limit the

right to participate in a party primary or be a

candidate for political office, a person is excluded

by reasonable restriction but not by a political

caste system. There can be no discrimination of

A-20

constitutional proportion when a man refrains

from entering a party primary of one of the

' two major political parties because he regards

himself an independent or a member of a

minority party.”

“Not every limitation or incidental burden on the ex-

ercise of voting rights is subject to a strict standard of

review.” Bullock v. Carter, 405 U.S. 134, 143 (1972),

citing McDonald v. Board of Election Commissioners,

394 U.S. 802 (1969). Similarly, a state statute or policy

must cause more than a minimal infringement of First

Amendment rights before a state is called upon to pro-

vide a “compelling interest” justification. See, e.g., Con-

necticut State Federation of Teachers v. Board of Educa-

tion Members, __ F.2d __ (No. 75-7436, 2 Cir., May

21, 1976), and authorities cited therein. In Storer y.

Brown, supra, 415 U.S. at 729, the Supreme Court

stated:

“{A]ppellants . ... assert that under [certain

Court decisions], substantial burdens on the

right to vote or to associate for political pur-

poses are constitutionally suspect and invalid

under the First and Fourteenth Amendments

and under the Equal Protection Clause unless

essential to serve a compelling state interest

It has never been suggested that [the

rule of these decisions] automatically invali-

dates every substantial restriction on the

right to vote or to associate.”” (Emphasis

supplied.)

There must be more than a minimal infringement on the

rights to vote and of association, therefore, before strict

A-21

judicial review is warranted. See Buckley v. Valeo, supra,

and United States Civil Service Commission v. National

Association of Letter Carriers, 413 U.S. 548, 567 (1973)

(“neither the right to associate nor the right to participate

in political activities is absolute’’); Kusper v. Pontikes,

414 US. 51, 58 (1973) (“a significant encroachment upon

associational freedom cannot be justified upon a mere

showing of a legitimate state interest’”) (emphasis added).

We, therefore, conclude that §9-431 is reasonably related

to the accomplishment of legitimate state goals. Rosario

v. Rockefeller, supra, 410 U.S. at 762.

Plaintiffs, in their argument, have pointed to several

perceived flaws in the primary election system which the

Connecticut legislature has established. It is asserted, for

example, that, “There are, moreover, reasons to believe

that if independent voters were able to vote in primary

elections, the stability of the political system would

actually be enhanced”’; and that participation by inde-

pendent voters in primary elections “will benefit the

two-party system by drawing more citizens into the poli-

tical process at this crucial stage.” They also argue that

it is “irrational” for the legislalture “to presume” that

“independent voters are at all likely to engage in raiding,”

and, as discussed supra, that 89-56 is an ineffective device

to bar deceptive conduct by those independents who wish

to engage in it. The Secretary of the State, meanwhile,

in her argument, has pointed out that, should plaintiffs

prevail here, Connecticut would be forced’to choose

among a number of other types of primary systems, e.g.,

the “crossover” primary, the “blanket” primary, or the

“multiple vote” primary. The amicus curiae brief states

that

A-22

“| . a major factor in the increase in propor-

tion of unaffiliated voters is the discontent

and dissatisfaction of large numbers of citizens

with the political parties... ,”

and that excluding independent voters from participation

in primary elections serves to increase the feeling of

these citizens that they are excluded from an important

part of the political process. The amicus brief declares

that §9-431 actually “hinders the operation of the demo-

cratic process in an enlightened society such as we enjoy

in the State of Connecticut,” and asserts that “[nJo poli-

tical party can derive real strength” from this statute

which “compeis citizens to affiliate in order to exercise

their constitutional rights.”

The comparative merits of various forms of primary

election systems have been widely debated in this presi-

dential election year. In particular, the “open” and

“crossover” primaries, which permit independents and/or

members of other parties to participate in a given party’s

primary, have been the subject of controversy.*

A state may legislate to prevent the perceived evils of

crossover voting, e.g, Rosario v. Rockefeller, supra, but

several states permit crossover voting in their primaries.

Others have provision for primaries which allow partici-

pation by independents and members of other parties.

There is no suggestion that such a clause makes the elec-

tion laws unconstitutional, nor is it a mandatory prereq-

uisite to constitutionality that independent, non-member

electors be permitted to vote in a party’s primary. The

Connecticut General Assembly has adopted statutes govern-

ing political party primaries which it considers best meet

the needs of the State. The laws are not invidiously

A-23

discriminatory but apply to all alike. The legislatures of

"[t] he states have broad discretion in formulating election

policies," Tansley v, Grasso, 315 F. Supp. 513, 519 (D.

Conn. 1970) (three-judge court), citing Williams v. Rhodes,

393 U.S. 23, 34 (1968); United States v. Classic, 313 U.S.

299, 311 (1941); and Voorhes v, Dempsey, 231 F. Supp.

975, 977 (D. Conn. 1964) (three-judge court) (per curiam),

aff'd mem., 279 U.S. 648 (1965). Accord, Bullock y,.

Carter, supra, 405 U.S. at 141; see also Storer v. Brown,

supra, 415 U.S. at 729-30 and 736.

We, therefore, hold that the election laws of the Gen-

eral Statutes of the State of Connecticut, governing pri-

maries are not in violation of the Constitution of the

United States, that they provide for legitimate goals

through constitutionally permissible means and that there

is no need or occasion for the judicial relief requested by

the plaintiffs.

The record does not disclose that the plaintiffs at any

time have sought to have the primary election statutes

changed to conform more closely to their views. The laws,

as they are now, are not immutable; and, if the plaintiffs,

as they imply, are speaking for a generous one-third of

the entire electorate of the State of Connecticut, they

should, by using the simple and direct means provided by

§ §9-453a-453s, be able to get one or more of their num-

ber on the ballots and, through diligent and thorough

campaigning, elect one or more representatives in the leg-

islature. Theoretically the laws are still made by the leg-

istatures and, although the effort to achieve a change in

the statutes requires a great deal of time, hard work and

infinite patience, it is not impossible. The presently

popular course of raising a federal constitutional question

and seeking a change in the law by judicial fiat, is quicker,

A-24

more academically attractive and perhaps more thorough.

But such action tends in itself to work in derogation of

the separation of powers and our democractic system of

government. The courts should not use this power for

the purpose of exercising ‘some amorphous general super-

vision of the operations of government," United States v.

Richardson, 418 U.S. 166, 192 (1974) (Powell, J., con-

curring), but only to redress violations of basic human

rights to which federal constitutional protections have been

extended or to correct governmental action which other-

wise conflicts with express provisions of the Constitution.

The plaintiffs’ case does not fall within these designations.

The defendants’ motion tc dismiss is granted and the

plaintiffs’ motion for summary judgment is denied. Judg-

ment may enter accordingly.

Dated at Hartford, Connecticut, this 14th day of July,

A.D. 1976,

/s/ Robert P. Anderson

United States Circuit Judge

/s/ T. Emmet Clarie

Chief United States District

Judge

/s/ M. Joseph Blumenfeld

United States District Judge

Footnotes:

1. Plaintiffs’ original complaint, filed January 15, 1976, named

only Secretary of the State Schaffer as a defendant. Subsequently,

after a "Motion by Defendant to Bring in Additional Defendants,”

the Republican and Democratic Parties of Connecticut were added

as defendants.

2. The request for certification of this case as a class action, with

the class comprised of “all those registered voters of the State of

the Secretary of the State stipulated at

the hearing on the merits that this court's ruling on the validity of

89-431 would not be limited to plaintiffs Nader and Snyder but

3. A "major party" is one (a) whose candidate in the last

preceding gubernatorial election received at least twenty percent of

the total votes for that office; or (b) whose candidate for the office

in question received, at the last preceding regular election for that

office, at least ten percent of the total votes. Conn. Gen. Stat.

89-372(e). A "minor party" is one whose gubernatorial candidate

received less than twenty percent of the total vote in the last pre-

ceding election; and whose candidate for the office in question

received less than ten percent but at least one percent of the total

vote for that office in the past preceding election. Conn. Gen.

Stat. #9-372(f). Independents or "petitioning parties" are candi-

dates or parties who have qualified for nomination for elective

office pursuant to the provisions of 889-453(a) through 9-453(s),

inclusive, or in instances of nominations for vacancy elections for

the offices of state senator or state representative, as provided in

89-216.

4. We agree at the outset with plaintiffs, that constitutional stan-

dards must be satisfied in primary as well as in general electiors,

Smith v. Allwright, 321 U.S. 649, 661 (1944); cf. Moore v. Ogilvie,

394 U.S. 814, 818 (1969); and that the Secretary of the State's

actions which are complained of are taken under color of state law

for purposes of 42 U.S.C. $1983, Bullock v. Carter, 405 U.S. 134,

140 (1972); Gray v. Sanders, 372 U.S. 368, 374-75 (1963); State

of Georgia v. National Democratic Party, 447 F.2d 1271, 1276

(D.C. Cir.), cert. denied, 404 U.S. 858 (1971).

Although plaintiffs cite several cases for the proposition that there

is a "right" to vote in primary elections, these cases do not hold

that there is a right to vote in primary elections even though the

voter refuses to comply with constitutionally legitimate rules and

requirements of party membership. Indeed, the leading case of

Smith v. Allwright, supra, involved a primary election system,

established by state statute, under which party membership was

A-26

"the essential qualification for voting in a primary to select nominees

for a general election," id, at 664, The petitioner there did not

question the party membership requirement, but successfully chal

lenged as unconstitutional his exclusion from Democratic Party

membership on the basis of race. It must be presumed that the

petitioner was ready, willing, and able to satisfy all other prerequi-

sites for party membership (see 131 F.2d 593, 594 (S Cir. 1943)

(per curiam)), which included a party loyalty oath, 321 U.S. at

653-54 n. 6, because, had he not satisfied all other valid party

membership requirements, he would have lacked standing to raise

the racial issue. Cf. Storer v. Brown, 415 U.S. 724, 736-37 (1974);

Clark v. Rose, 531 F.2d 56, 58 (2 Cir. 1976) (per curiam).

5. In terms of the ease of access to the ballot which the Con-

necticut statutes provide for parties other than the Republican and

Democratic Parties, and persons who are not candidates of those

Parties, it is interesting to note that, in the 1970, 1972, and 1974

elections, a total of nine candidates who were neither Republican

nor Democratic achieved "major party" status, Further, from 1966

through 1974, a total of sixty candidacies achieved "minor party”

status. And from 1966 through 1975, a total of 969 candidates

gathered a number of petition signatures sufficient under 09-543d

to entitle them to be placed on the ballot for the general election.

6. On June 22, 1976 this court granted United States Senator

Lowell P. Weicker, Jr.'s motion for leave to file an amicus curiae

brief.

7. The Court did not say, "voters who are members of one

party ...." It thus left open the possibility that independent voters,

as well as members of other parties, could be guilty of "raiding."

But see Echevarria v. Carey, 402 F. Supp. 183, 188 (S.D.N.Y. 1975).

8. See, e.g., Editorial, "Adulterated Choice," New York Times,

May 25, 1976, at 34, col. 1; M.S. Forbes, Jr., Waliacites and the

GOP," Forbes, June 1, 1976, at 19; Barone, "That ‘Crossover’

Nonsense," Washington Post, May 16, 1976, at C-7; Herbers, "Cross

over Voting Makes Primaries More General," New York Times, May

16, 1976, &IV, at 2; Rovere, "Letter From Washington,” The New

Yorker, June 21, 1976, at 90-91. See generally Note, 27 RUTGERS

L. REV. 298 (1974), and Comment, 40 U, CHL L. REV. 636

(1973).

A-27

(Filed: August 13, 1976]

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF CONNECTICUT

[Caption]

NOTICE OF APPEAL

Notice is hereby given that plaintiffs Nathra Nader and

Albert C, Snyder, Jr., appeal to the Supreme Court of the

United States from the judgment of the three-judge court

entered in this action on July 20, 1976. The court denied

plaintiffs’ motion for summary judgment, thereby denying

plaintiffs a permanent injunction against the enforcement

of Conn, Gen, Stat. §9-431, and granted defendants’ mo-

tion to dismiss. Appeal is taken pursuant to 28 U.S.C.

§1253.

Dated: Washington, D.C.

August. 13, 1976

Respectfully submitted,

/s/ William Clendenen

William Clendenen

152 Temple Street, Suite

310-11

New Haven, Connecticut

06510

/s/ Linda F, Donaldson

Linda F, Donaldson

/s/ Alan B. Morrison (by L.F.D.)

Alan B. Morrison

Suite 700; 2000 P St., N.W.

Washington, D.C. 20036

(202) 785-3704

Attorneys for Plaintiffs

A-28

[Filed: May 6, 1976]

AFFIDAVIT OF NATHRA NADER

NATHRA NADER, being duly sworn, hereby deposes

and says:

1. 1, Nathra Nader, am a citizen of the United States

and a bona fide resident of the Township of Winchester,

Connecticut. I am presently registered to vote in Winches-

ter and have been so registered for over fifty years.

2. Ihave in the past voted in Winchester in federal,

state and local general elections.

3. 1am not now and have never been enrolled as a

member of any political party, including the two major

political parties who are defendants in this case. I refuse

as a matter of principle to join either of the major

political parties or any other political party. Such affilia-

tion would be contrary to my beliefs, particularly in view

of the fact that a record of my affiliation would be pub-

lic under Connecticut law.

4. By virtue of the fact that I have refused to enrol

in a political party, I have in the past been denied the

right to vote in those primary elections in the State of

Connecticut in which candidates for public office are nom-

inated, I have therefore been unable to vote for certain

candidates whom I preferred to the candidates eventually

selected as nominees for public office. I would like to

vote in those primary elections and thereby to support

candidates of my choice.

5. I believe that it is my right as an American citizen

to participate equally with other citizens in the selection

of the officials who will govern or represent me in public

A-29

office and that I should not be denied that right because

others choose to join a political party and I do not.

/s/ Nathra Nader

Nathra Nader

{Notary Seal]

[Filed: May 6, 1976}

AFFIDAVIT OF ALBERT C. SNYDER, JR.

ALBERT C. SNYDER, JR., being duly sworn, hereby

deposes and suys:

1. I, Albert C, Snyder, Jr., am a citizen of the United

States and a bona fide resident of the Township of Win-

chester, Connecticut. I am presently registered to vote in

Winchester.

2. I first registered to vote in 1945 in Bloomfield,

Connecticut, Between 1945 and 1974, I changed my town

of residence several times, but always lived within the

State of Connecticut. In 1974, I moved to Winchester.

In all of these towns, I have voted in federal, state and

local general elections.

3. In each of the towns where I lived between 1945

and 1974, I enrolled as a member of the Republican Party.

I enrolled as a Republican because that party was the

predominant party in each of the towns where I lived,

and because the candidates of the Republican Party best

represented my views on issues during those years.

4. In 1974, when I moved to Winchester, |. decided

to become an independent voter and did not enrol with

a party. I refused to enrol because I had become convinced

that there is no difference between the Republican and

A-30

Democratic Parties. The Watergate episode also convinced

me that our present political system makes candidates so

dependent on their party's support for assurance of elec-

tion or re-election that they become unwilling to be honest

or to take independent stands on issues. I did not want

to be a member of a party under these circumstances,

5. I believe that under the present system, I am given

little real choice between candidates when I vote in a

general election. The percentage of registered voters who

do not vote on election day convinces me that other

voters also feel they have no choice.

6.. Because I am not enrolled in a party, I am now

denied the right to vote in those primary elections in the

State of Connecticut in which candidates for public office

are nominated, I am therefore unable to support fully

certain candidates whom I prefer, but who may suffer

defeat in the primary election. I would like to vote in

those primary elections and thereby to support candidates

of my choice.

7. I believe that it is my right as an American citizen

to participate equally with other citizens in the selection

of the officials who will govern or represent me in public

office and that I should not be denied that right because

others choose to join a political party and I do not,

/s/ Albert C. Snyder, Jr.

Albert C, Snyder, Jr.

{Notary Seal]

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