Motion to Affirm — Nader v. Schaffer

Supreme Court, U. &

FILED

IN THE | NV 9 mis

Supreme Court of the United Ster Pork. g. c

October Term, 1976

Docket No. 76-504

NATHRA NADER and ALBERT C. SNYDER, JR.,

Appellants,

—V.—

GLORIA SCHAFFER, Secretary of the State of Con-

necticut; DEMOCRATIC PARTY OF THE STATE

OF CONNECTICUT; and REPUBLICAN PARTY

OF THE STATE OF CONNECTICUT,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FoR THE DISTRICT OF CONNECTICUT

MOTION OF APPELLEES DEMOCRATIC AND

REPUBLICAN PARTIES OF THE STATE OF

CONNECTICUT TO AFFIRM AND

BRIEF IN SUPPORT THEREOF

JAMES A. WADE

799 Main Street

Hartford, Connecticut 06103

Attorney for Appellee Democratic

Party of the State of Connecticut

CARL CELLA

One Broadway

North Haven, Connecticut 06473

Attorney for Appellee Republican

& THE ALPERT PRESS INC., G44 PACIFIC ST. BKLYN.. N. V. Party of the State of Connecticut

* UU ! ¶ —— —

— 20

INDEX

PAGE

SD EI NS deh Foci ns SEEN Meus HER 1

Dt chthvedhh TTT 2

D. i cDki cee pete cies 3

. 4

A. Political Parties Are Voluntary Associa-

tions with the Power to Regulate the Mem-

e 5

B. Freedom Not to Associate is Not A Logical

Corollary of Freedom To Associate ....... 9

C. Appellants Seek A Judicial Solution To A

Z 11

D. Appellants Have Failed To Allege a True

Case Or Comtroveray „ „„ „ „ „ 14

eee 15

2. Participation by Independents and Mi-

nene 17

3. Participation by the Appellants ...... 19

. ⁊ / deere 21

r ˙üA ˙— —»Ww eee 1a

TABLE OF AUTHORITIES

Cases:

Alcorn ex rel. Dawson v. Gleason, 10 Conn. Supp. 205

CU Oe SOUR il es RI. bis BEVEL Vas 5

Ashwander v. T.V.A., 297 U.S. 288 (1936) ........ 15

PAGE

Baker v. Carr, 369 U.S. 186 (1962) ............. 12

Coleman v. Miller, 307 U.S. 433 (1989) .......... 12

Cousins v. Wigoda, 419 U.S. 477 (1975) .......... 9

Dickson v. Taylor, 105 F. Supp. 251 (W.D. Tex.

cc ˙ĩ˙—˙wddññ 8

Elrod v. Burns, — U.S. —, 44 U.S. L. W. 5091 (June

D ˙ w 10

Fairchild v. Hughes, 258 U.S. 126 (1922) 14

Fields v. Osborne, 60 Conn. 544, 21 Atl. 1070 (1891) 5

Grove v. Townsend, 295 U.S. 45 (1935) ......... 6

Kusper v. Pontikes, 414 U.S. 51 (1973))))) 9,12

Lacava v. Carfi, 140 Conn. 517, 101 A.2d 795 (1953) 12

Massachusetts v. Mellon, 262 U.S. 447 (1923) ..... 14

Mills v. Gaynor, 136 Conn. 632, 73 A.2d 823 (1950) 12

Mine Workers v. Illinois Bar Assn., 389 U.S. 217

. . ...es ss e dee es ee 9

Muskrat v. United States, 219 U.S. 346 (1911) .... 15

NAACP v. Alabama, 357 U.S. 449 (1958) ........ 9

NAACP v. Button, 371 U.S. 415 (1963) .......... 9

Nixon v. Condon, 286 U.S. 73 (1982) ............ 6

Nixon v. Herndon, 273 U.S. 536 (1927) ........... 6

Oetjen v. Central Leather Co., 246 U.S. 297 (1918) 12

Osborn v. United States Bank, 9 Wheat. 738 (1824) 14

Powell v. McCormack, 395 U.S. 486 (1969) ...... 12

Ray v. Blair, 343 U.S. 214 (1952) ............... 6, 8

Scully v. Town of Westport, 20 Conn. Supp. 399, 137

BE Gee Gee anh 0600 che sbseensabssnse: 12

iii

PAGE

Seay v. Latham, 143 Tex. 1, 182 S.W.2d 251 (1944) 8

Smith v. Allwright, 321 U.S. 649 (1944) ......... 6, 8

Socialist Labor Party v. Rhodes, 290 F. Supp. 983

CA GD Ee BEG esse 5

South Spring Gold Co. v. Amador Gold Co., 145 U.S.

r ˙ĩ˙7ʃ·v!ßtt é oaan bene’ 14

Talcott v. Philbrick, 59 Conn. 472, 20 Atl. 436 (1890) 12

Terry v. Adams, 345 U.S. 461 (1953) ............ 6

Texas v. Interstate Commerce Commission, 258 U.S.

Se GE rene 15

United States v. Classic, 313 U.S. 299 (1941) 6

United States v. Shirey, 168 F. Supp. 382 (M.D. Pa.

77, . ˙ 5

Williams v. Rhodes, 393 U.S. 23 (1968) .......... 9

Statutes:

Ala. Code, 1940, Tit. 17, 58 347, 348, 350

Conn. Gen. Stats. (Rev. 1958):

D ⸗˙⸗A² én le TED AHS REA choise cover 2

1 2

E 2

Drees 2

16 2

— ds ce bee has 0606 Heider edad 19

rc KVC 2

bless 16

iv

PAGE

§ 9-372 (e) 2 CCE COC ECE „ „ 0% % %% % 6% % „ 0 18 IN THE

U 18

U 13, 16 Supreme Court of the United States

„„ ee 16 October Term, 1976

T7177 ˙·n. See es 16

SR se eS ea 2, 3, 4, 5, passim Docket No. 76-504

C 18 — —___

.be tees e ese eee e 18 NATHRA NADER and ALBERT C. SNYDER, IR.,

r 18 Appellants,

r 18 *

U.S. Const. Art. III, §2 2ꝛ2ꝛ .. 14 GLORIA SCHAFFER, Secretary of the State of Connecticut;

DEMOCRATIC PARTY OF THE STATE OF CONNECTICUT;

and REPUBLICAN PARTY OF THE STATE OF CON-

NECTICUT,

Appellees.

—ͤ—Erꝛ— ſ — i

MOTION OF APPELLEES DEMOCRATIC AND

REPUBLICAN PARTIES OF THE STATE OF

CONNECTICUT TO AFFIRM AND

BRIEF IN SUPPORT THEREOF

Appellees, the Democratic Party of the State of Con-

necticut and the Republican Party of the State of Con-

necticut, move, pursuant to Rule 16 of the Rules of the

Supreme Court of the United States, that the judgment

of the United States District Court for the District of

Connecticut be affirmed on the ground that the questions

presented on appeal are not so substantial as to warrant

further argument.

Statement

This is a direct appeal from the judgment dated July

20, 1976, of the United States District Court for the Dis-

trict of Connecticut, sitting as a three-judge court, dis-

missing the Appellants’ Complaint which sought to enjoin

enforcement of Section 9-431. of the Connecticut General

Statutes (Revision of 1958).

Section 9-431 limits participation in the primaries of

a given political party in the State of Connecticut to the

enrolled members of that party. Appellants sought to en-

join the Secretary of the State of Connecticut * from en-

forcing § 9-431 because they claimed that it forces them,

as unaffiliated voters,“ to choose between what they claim

1 Conn. Gen. Stats. (Rev. 1958) § 9-431 provides in pertinent

part as follows:

Eligibility to vote at primary: No person shall be per-

mitted to vote at a primary of a party unless he is on the

last completed enrollment list of such party in the munici-

pality or voting district, as the case may be.

2 The Secretary of the State of Connecticut has plenary super-

visory authority over the conduct of elections and primaries in

Connecticut. Conn. Gen. Stats. (Rev. 1958) §§ 3-77, 3-87, 9-3 and

9-4. However, the mechanics of carrying out the electoral pro-

cess must be performed by the various town clerks, registrars,

election moderators and town committees in each of the 169 towns

of Connecticut. None of these election officials were made parties

to this action. The significance of the absence of these officials

in this action is discussed in connection with the political question

doctrine. Infra, pp. 11 et seq.

Throughout their Brief, the Appellants refer to themselves

as “independents”, a term which carries with it a connotation of

independent political philosophy. It is actually a misnomer.

Under Connecticut law, a citizen by registering to vote becomes

an “elector”. Conn. Gen. Stats. (Rev. 1958) §9-12. He may

then apply for enrollment on the list of the political party of his

preference. Conn. Gen. Stats. (Rev. 1958) f 9-56. If he does

not choose to affiliate with a political party he is recorded on the

roll of his town of residency as an unaffiliated elector.

is their right to vote and to associate in support of par-

ticular candidates on the one hand and their right to be

free of coerced affiliation and to maintain their privacy

of association on the other. The judgment of the Dis-

trict Court denied the Appellants’ Motion for 8

Judgment and granted the Motions to Dismiss filed by

these Appellees and by the Appellee, Gloria Schaffer.

Summary of Argument

Political parties are voluntary associations and as such

have the power to regulate the membership thereof. Ad-

herence to the philosophy and principals of a given polit-

ical party is an enforceable condition of membership

therein. So long as a political party does not impose con-

stitutionally impermissible criteria for membership, they

may otherwise regulate their members. Section 9-431

protects that right of association.

The Appellants’ claim that § 9-431 forces them to as-

sociate with a political party whose philosophy or prin-

ciples is specious. They are not required to adopt the

political beliefs of every other member of such party but

merely to undergo what amounts to an administrative

recording of party affiliation. This process is necessary

for the orderly conduct of the nominating processes of

the various political parties and to prevent indiscriminate

or premeditated efforts to alter the outcome of a given

party’s primary. Freedom not to associate is not a logical

corollary of freedom to associate.

Party affiliation in Connecticut does not result in the

imposition of a set of beliefs or conditions of behavior

upon an elector so as to coerce him into decisions or

actions he might not otherwise make. Appellants have

4

offered no proof that party affiliation will in any way

violate their claimed right of privacy.

Appellants herein are seeking a judicial solution to a

political question. Because they have failed to structure

a mechanism to govern the conduct of party primaries

should Section 9-431 be declared invalid, they would

thrust the Court into the role of establishing rules and

monitoring such primaries.

Appellants have failed to allege and prove a true case

or controversy. They can participate in the primary

process by the simple ministerial act of affiliating with a

political party. If they choose not to do so, the Con-

necticut law provides adequate alternative access to the

ballot, a process which has been followed by significant

numbers of persons.

ARGUMENT

The principal claim asserted by the Appellants is that

Section 9-431 “forces them to choose between exercise of

their fundamental rights to vote and to associate in sup-

port of particular candidates on the one hand, and exer-

cise of their fundamental rights to be free of coerced

affiliation and to maintain their privacy of association

on the other.”* Stated more concisely, the Appellants

want to participate in the process by which a political

party chooses not only its candidates for public office but

possibly its party leadership as well but do not want to

be identified with the party or submit to whatever rules,

however limited, it might impose on its members.

* Jurisdictional Statement, pp. 16-17.

These Appellees, the Democratic and Republic Parties

of the State of Connecticut, submit that they and their re-

spective members have rights of their own to associate to-

gether to advance their respective political philosophies

and that included among those rights is the selection of

candidates and leaders who are derived from and espouse

the philosophies of their members. Section 9-431 of the

Connecticut General Statutes helps to do just that.

A. Political Parties Are Voluntary Associations with

the Power to Regulate the Membership Thereof.

The Democratic and Republican Parties of the State

of Connecticut are, respectively, voluntary associations,

instituted for political purposes. Alcorn ex rel Dawson

v. Gleason, 10 Conn. Supp. 205, 217 (Com. Pl. 1941);

Fields v. Osborne, 60 Conn. 544, 547, 21 Atl. 1070 (1891).

Any state political party is a creature of its own time in

that it is an association of a group of people with similar

political theories at a given time and subject to a given

set of rules. Fields v. Osborne, supra; Socialist Labor

Party v. Rhodes, 290 F. Supp. 983, 988 (S.D. Ohio E.D.

1968); United States v. Shirey, 168 F. Supp. 382, 385

(M.D. Pa. 1958). As a political entity each political

party is entitled to lay down minimum standards for

membership in and participation in the affairs of the

Party, so long as those standards do not violate constitu-

5 It should be noted that the Connecticut General Statutes do

not limit participation in the electoral process to the Republican

and Democratic parties. Section 9-872 provides for “major”

parties whose candidates receive at least 20% of the vote for

Governor at the last general election or at least 10% of the votes

cast for the office being contested and “minor parties” whose

candidates received less than 20% or 10% respectively. The

number of such major and minor parties is limited only by the

ability of their candidates to obtain votes in a contested election.

6

tionally protected rights of the rank and file.“ However,

other party regulations, which might otherwise infringe

on the rights held dear by many citizens of this country,

have been specifically upheld. |

Thus, in Ray v. Blair, 343 U.S. 214 (1952), this Court

held that party discipline is a legitimate exercise of power

by a political party, notwithstanding a state statute in

conflict with such discipline. In Blair, a “loyalty oath”

adopted by the State Democratic Executive Committee of

Alabama was under attack. The oath required candidates

in Alabama’s primary for presidential electors to pledge

to support the nominees of the National Convention of

the Democratic Party for President and Vice President.

Title 17 of the Code of Alabama provided for regular op-

tional primary elections in that state on the first Tuesday

of May of even years by any political party. Title 17

§ 347 permitted the State Executive Committee of any

party to determine the qualifications of electors and § 348

required a candidate for presidential election to file his

declaration of candidacy with the Executive Committee

in the form prescribed by the governing body of the party.

In addition, § 350 read as follows:

At the bottom of the ballot and after the name of

the last candidate shall be printed the following

viz: “By casting this ballot I do pledge myself to

For example, barring participation in party affairs on the

basis of race is constitutionally impermissible. In a series of

cases referred to as the “White Primary Cases” this Court held

that efforts by the Democratic Party of the State of Texas to

prohibit Blacks from participating in the primary process violated

their Fourteenth and Fifteenth Amendment rights. See Nizon v.

Herndon, 273 U.S. 536 (1927); Nizon v. Condon, 286 U.S. 78

(1982); Grovey v. Townsend, 295 U.S. 45 (1935), overruled in

Smith v. Allwright, 321 U.S. 649 (1944); and Terry v. Adams,

845 U.S. 461 (1953).

7

abide by the result of this primary election and to

aid and support all the nominees thereof in the

ensuing general election.”

The Alabama Democratic Executive Committee went

one step further and added an additional provision that

the elector had to agree to support the nominees of the

National Convention of the Democratic Party for Presi-

dent and Vice President of the United States. It was

this provision which was objected to by the plaintiff in

Blair. He was supported by the Supreme Court of

Alabama which held the oath in violation of the Twelfth

Amendment’ to the Constitution of the United States.

57 So. 2d 395. The United States Supreme Court re-

versed the Alabama Court saying in 343 U.S. at 225:

Neither the language of Article II § 1 nor that of

the Twelfth Amendment forbids a party to require

from candidates in its primary a pledge of political

conformity with the aims of the party. Unless

such a requirement is implicit, certainly neither

provision of the Constitution requires a state poli-

tical party, affiliated with a national party through

acceptance of the national call to send state dele-

gates to the national convention, to accept persons

as candidates who refuse to agree to abide by the

party’s requirement.

The Court goes on to analyze and reject the theory that

the loyalty oath impinges on the elector’s freedom to vote

his conscience for President for which theory the plaintiff

The Twelfth Amendment was adopted to eliminate the diffi-

culties caused by Article II, Section 1 which permitted electors to

vote for two persons for President and Vice President without

designating which office he wanted each to fill. The result could

wind up a tie and throw the election into the House of Represen-

tatives. This Amendment permitted electors to vote separately

for presidential and vice presidential candidates.

8

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

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

cases dealt with power to punish for criminal conduct in

a primary and an attempt to exclude from party parti-

cipation on the basis of race. In upholding the validity

of the loyalty oath,* the Court said in 343 U.S. at 227:

The issue here, however, is quite different from

the power of Congress to punish criminal conduct

in a primary or to allow charges for wrongs to

rights secured by the Constitution. A state’s or a

political party’s exclusion of candidates from a

party primary because they will not pledge to

support the party’s nominee is a method of securing

party candidates in the general election, pledged

to the philosophy and leadership of that party.

The analogy between Ray v. Blair and the present

case is clear. In Blair the Court held that participation

in a primary could legitimately be limited to candidates

who pledged themselves to the “philosophy and leadership

of that party”. If limiting the free exercise of choice,

thought, and speech by a candidate is a legitimate exercise

of power by a state or political party why is it also not

legitimate to limit participation in the primary that

chooses that party’s candidates to persons who, by en-

rolling in that party, espouse its philosophy and leader-

ship as well?

The point of the foregoing discussion relating to party

discipline is that the Courts have recognized room for

legitimate and reasonable political rules within the statu-

s See also Dickson v. Taylor, 105 F. Supp. 251 (W.D. Tex.

1952) and Seay v. Latham, 143 Tex. 1, 182 S.W.2d 251 (1944)

in which loyalty oaths were upheld as legitimate exercises of

party discipline.

tory and constitutional framework which preserve the

identity of the political party. While it might be argued

that a loyalty oath impinges upon one’s freedom of thought

and speech, such an oath has been held to be a legitimate

exercise of party discipline. Since a political party has

the power to impose this type of sanction on its candidates,

then surely it must have the power to exclude from

participation in its processes to choose candidates those

persons who neither embrace nor follow the philosophy

and leadership of that party. While the Democratic and

Republican Parties of Connecticut do not gainsay the

right of the plaintiffs to remain unaffiliated, they do

assert their own respective rights to establish reasonable

constitutional criteria for membership in and participa-

tion in party affairs. Since the nominating process is an

integral part of each party’s method of choosing candi-

dates, exclusion of those persons who do not espouse the

party’s philosophy and leadership is not impermissible.

B. Freedom Not to Associate is Not A Logical Corol-

lary of Freedom To Associate.

This Court has repeatedly held that freedom of asso-

ciation is protected by the First Amendment to the United

States Constitution. Williams v. Rhodes, 393 U.S. 23, 31

(1968); Mine Workers v. Illinois Bar Assn., 389 U.S.

217 (1967); NAACP v. Button, 371 U.S. 415 (1963);

NAACP v. Alabama, 357 U.S. 449 (1958). Included

among the freedoms protected is the right to “associate

with others for the common advancement of political

beliefs and ideas”, a freedom that encompasses “the right

to associate with the political party of one’s choice.”

Cousins v. Wigoda, 419 U.S. 477, 487 (1975); Kusper v.

Pontikes, 414 U.S. 51, 56-57 (1973). That right of

association is a meaningless one if the party’s candidates

for public office and its own leadership are to be chosen

10

by non-party members; i.e., unaffiliated electors who not

only might not espouse the party’s political beliefs and

ideas but indeed might find them inimical to their own.

The Appellants claim that Section 9-431 leaves them

with the awful choice of not voting in a party’s primary

or giving up their “right not to associate”. But where

does an alleged right not to associate come from? Elrod

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

relied on so heavily by Appellants, is not controlling. In

Elrod, this Court held that patronage dismissals of non-

civil service employees of the Cook County, Illinois Sheriff’s

Office violated First and Fourteenth Amendment rights

by forcing employees to join a political party they might

otherwise disavow in order to keep their jobs. At stake

was public employment which was being controlled by

partisan considerations.

That is not the case here. All Section 9-431 does is

limit participation in a partisan event, i. e., the primary

nominating process, to members of that partisan group.“

There is no impact on one’s livelihood, one’s freedom of

speech or one’s political beliefs. The statute simply in-

sures that the selection of a party’s candidate in a state

election will be selected by members of that party. In

„ The Appellants herein make no claim that the prohibition

against crossover voting in Connecticut’s primaries fails to meet

constitutional standards. By seeking to vote in the primary of

their choosing simply because they are unaffiliated, the Appellants

seek a greater right than that afforded members of the major

parties.

10 In the recent Presidential election, the Democratic Party

for the State of Connecticut conducted its own Presidential prim-

ary which was run and financed entirely by the Democratic Party

outside the State’s election laws. Neither Republicans, unaffiliated

electors or minor party members were able to participate in this

primary. It was an internal election conducted solely by a volun-

tary association in accordance with its own rules.

11

effect, the Appellants are being told that if you want to

participate in the nominating game you must play the

game according to the rules of the party whose candidates

you are nominating. No one is barred from participating

because he belongs to a constitutionally protected class of

citizens. There is no coerced association in the constitu-

tional sense.

Appellants further allege that if they “did succumb

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

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

fying them with a particular party would invade their

privacy.“ They did not choose to offer any evidence

in support of this claim. The District Court quite prop-

erly disposed of this issue by noting that it is insufficient

“merely to raise the spectre of harassment; instead, they

must make a detailed factual showing of actual threats

or incidents of harassment.” *

c. Appellants Seek A Judicial Solution To A Poli-

tical Question.

On the face of the Appellants’ Complaint they seek

simply to have Section 9-431 of the Connecticut General

Statutes declared unconstitutional insofar as it prohibits

unaffiliated voters from voting in a party’s primary and

to enjoin the Secretary of State from enforcing the same.

This deceptively simple prayer for relief ignores the

mechanics of running a primary election wherein, sud-

denly, a whole new class of voters are eligible to cast

ballots without any method of insuring a fair election.

Apparently the Appellants sought to remedy that problem

by asking the Court to require the Secretary of State to

u Jurisdictional Statement, p. 21.

12 Memorandum of Decision, Appellants’ App. p. A-9.

12

“send to the clerks of each municipality in the State in-

structions for the use of the moderators in each voting

district in the State, which instruction shall require each

moderator to ensure that each plaintiff and each member

of the plaintiff class is permitted to vote in a primary

election of his or her choice.”

Under Connecticut law, election laws are peculiarly

the province of the General Assembly. Lacava v. Carfi,

140 Conn. 517, 519, 101 A.2d 795 (1953). The exercise

of suffrage is not a natural but a political right, and the

legislatures of the states acting within the powers con-

ferred by their constitutions may prescribe the manner

in which elections shall be conducted and the right of

suffrage exercised. Mills v. Gaynor, 136 Conn. 632, 636,

73 A.2d 823 (1950); Talcott v. Philbrick, 59 Conn. 472,

478, 20 Atl. 436 (1890). Accord, Scully v. Town of

Westport, 20 Conn. Supp. 399, 401, 187 A.2d 352 (1957).

“The administration of the electoral process is a matter

that the Constitution largely entrusts to the states.”

Kusper v. Pontikes, supra, 414 U.S. at 57.

It is well established that the federal courts will not

adjudicate political questions. Powell v. McCormack, 395

U.S. 486 (1969) ; Coleman v. Miller, 307 U.S. 433 (1939);

Oetjen v. Central Leather Co., 246 U.S. 297 (1918). In

Baker v. Carr, 369 U.S. 186, 217 (1962), this Court listed

six categories of cases which historically involve questions

deemed political and therefore non-judiciable:

Prominent on the surface of any case held to

involve a political question is found a textually

demonstrable constitutional commitment of the

issue to a coordinate political department; or a

lack of judicially discoverable and manageable

standards for resolving it; or the impossibility of

deciding without an initial policy determination of

13

a kind clearly for non- judieial discretion; or the

impossibility of a court’s undertaking independent

resolution without expressing lack of the respect

due coordinate branches of government; or an un-

usual need for an unquestioning adherence to a

political decision already made; or the potentiality

of embarrassment from multifarious pronounce-

ments by various departments on one question.

These Appellees contend that this case presents exactly

the type of issue that this Court said should be decided

politically rather than judicially. In adopting the election

laws of the State of Connecticut the General Assembly

has established a policy which promotes the two party

system instead of permitting the proliferation of political

parties in evidence in a number of countries. Any attack

on that policy should not be taken lightly.

Underpinning the election process in Connecticut is an

elaborate system which is calculated to eliminate unlawful

conduct and to insure that each elector’s vote will be

counted, but only once. By merely attacking the constitu-

tionality of § 9-431 without spelling out the method of

effecting a new system, the Appellants present to this

Court classic political questions.

Should crossover of party lines be allowed? How does

one insure that an unaffiliated elector votes in only one

primary? At what primary stage should unaffiliated

voters be allowed to participate? If the unaffiliated

18 In Connecticut, the town committee of a major party con-

stitutes the executive leadership of that party in a given town.

Town committee members of a party can be selected by primary

vote. (Conn. Gen. Stats. § 9-890). Similarly, delegates to the state

convention of a major party who select the members of a party’s

state central committee may be chosen in a primary. Are the

unaffiliated voters to be permitted to vote in primaries to select

the party leadership they expressly disavow by refusing to

affiliate?

14

elector can vote in primaries at every stage of the process,

what happens to the accountability of the persons so

elected?

These questions suggest that the problems raised by

the Appellants in this action are more susceptible to solu-

tion, if indeed they are to be solved at all, legislatively

rather than judicially. Since the electoral process is

fundamentally a legislative one, this Court should not

attempt to venture into an area that requires the ongoing

oversight of the Secretary of State’s Office. It is con-

ceivable that this Court could become the enforcement

agency of any order it might issue relating to primaries

to be conducted in all 169 towns in both political parties.

If ever a subject called for judicial restraint, this is it.

D. Appellants Have Failed To Allege a True Case

Or Controversy.

In establishing the judicial branch of government,

the United States Constitution limits the judicial power

only to “cases” or controversies“. The cases or con-

troversies concept has been construed to embrace matters

which are appropriate for judicial determination. Osborn

v. United States Bank, 9 Wheat. 738, 819 (1824). Thus

the controversy must be definite and concrete, touching the

legal relations of parties having adverse legal interests.

South Spring Gold Co. v. Amador Gold Co., 145 U.S. 300,

301 (1892); Fairchild v. Hughes, 258 U.S. 126, 129

(1922); Massachusetts v. Mellon, 262 U.S. 447, 487

(1923). It must be a real and substantial controversy ad-

mitting of specific relief through a decree of a conclusive

character as distinguished from an opinion advising what

U.S. Const. Art. III, § 2.

15

the law would be upon a hypothetical state of facts.

Muskrat v. United States, 219 U.S. 346, 367 (1911);

Texas v. Interstate Commerce Commission, 258 U.S. 158,

162 (1922); Ashwander v. T.V.A., 297 U.S. 288, 374

(1936).

The Appellees, Democratic and Republican Parties of

Connecticut, respectfully submit that the Appellants here-

in have failed to allege a true case or controversy for

two reasons. First, if their Complaint is that they are

denied access to the ballot at a critical stage of the elec-

toral process, when the major parties are nominating their

candidates, that claim is taken care of by the Connecticut

General Statutes which contain alternative methods of

nominating candidates. Secondly, the Appellants them-

selves, either by joining a party, forming a new party or

switching parties are themselves capable of mooting the

claim raised herein.

1. Access to the Ballot

It is interesting to note that the Appellants challenge

only § 9-431 of the Connecticut General Statutes which

deals with the last stage of the nominating process. The

Appellants express no interest in participating in any of

the preliminary stages leading up to a possible primary

nor in helping to select party candidates by any of the

several methods provided for in the statutes. It would

appear, therefore, that their claim that they are pre-

1 In addition to the challenge primary method, § 9-390 per-

mits party endorsement of candidates for municipal office, town

committee membership and convention delegates by: (1) caucus

of enrolled party members; (2) delegates to a convention chosen

in accordance with party rules; and (8) the town committee of

the party itself. .

16

vented from participating in an integral part of the

process is specious.

While the Appellants’ Complaint claims that they are

barred from participating in a part of the process by

which their Senators and Representatives are chosen, it

must be remembered that Title 9 of the Connecticut

General Statutes, and § 9-431 in particular, apply to the

selection of candidates at every level of government. In

addition, it is important to note that the Connecticut

system is a “challenge primary” system—not every candi-

date nor every elector has a “right” to participate in a

primary.

The basic nominating process is contained in § 9-380

which provides that state or district conventions, as the

case may be, shall “choose a candidate for nomination to

each state or district office”. Candidates for municipal

office and for town committees of the parties are governed

by § 9-390. Delegates to state or district conventions are

chosen pursuant to § 9-393, who in turn choose the nomi-

nee at such conventions. In the majority of cases the

nominating process ends at the convention and the party’s

nominee is presented to the voters at the general election.

The challenge aspect of Connecticut’s system derives

from the convention itself. If a candidate for office desires

to challenge the choice of the convention as the party’s

candidate the process for qualifying for a primary is

spelled out in § 9-400. He must first receive at least 20%

of the votes of the convention delegates present and

voting on any given roll call. He must also file with the

Secretary of the State a petition bearing the signatures

16 See Conn. Gen. Stats. § 9-372 for definitions of state,

district and municipal offices and for major and minor parties.

17

of electors residing within the district under contest ac-

cording to a statutory formula. Finally he must deposit

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

5% of the salary of the office for which his candidacy is

to be filed.* Only after all of these criteria have been met

is the candidate eligible to challenge the party’s nominee.

Thus it can be seen that there is no automatic right

either for a candidate or an elector to participate in a

primary. If an ‘elector favors the candidacy of a par-

ticular individual for United States Senator in a given

party, he will not get a chance to vote for him unless

that individual: (a) qualifies to participate in a primary ;

and (b) takes the affirmative steps to actually trigger a

primary. If the membership of a given party have no

“right” to participate in a primary, either as a candidate

or as an elector, it is difficult to conceive that an unaf-

filiated voter somehow has a superior “right” so to do.

2. Participation by Independent and Minor

Parties.

While an appearance on the ballot by a candidate

seeking the nomination of a major party is governed by

an elaborate procedure, people who qualify as representing

a minor party have virtual clear sailing on to the ballot.

Sections 9-453(a) through 9-453 (s) of the Connecticut

General Statutes provide a mechanism for a person who

has not been nominated by a major party to have his

name placed before the voters via the petition route. In

summary, such a candidate must obtain signatures equal

it State office: 5,000; Congressional office; 2,000; Sheriff; 750;

multi-town district office: 850; probate judge: 100.

For judge of probate the sum is $50.00 and for State Sen-

ator or State Representative the sum is $25.00.

18

to one percent of the votes cast for the same office at the

last preceding election. Once the petition has been ap-

proved by the Secretary of the State, the candidate’s

name will appear on the ballot. Since 1966, in various

offices to be elected throughout the state, 969 petitions have

been approved and 147 petitions have been disapproved.”

It certainly appears that there has not been a lack of

interest or participation in the nominating process.

Once a person has appeared on the ballot he may

achieve the status of either a major party or a minor

party depending on the number of votes he receives.

Once the candidate receives major party status all of the

rights to support his cause flow to him and his followers.

If he fails to achieve major party status but does qualify

for minor party status, his path thereafter is even smoth-

er. All he need do to qualify for the ballot is to follow

the rules of his minor party. See Connecticut General

Statutes §§ 9-451 and 9-452.

Annexed hereto as Appendix A is an enumeration of

the number of candidacies which have achieved either

major or minor party status. Once again it appears that

a significant number of poeple have been sufficiently in-

terested in the process to take advantage of the opportuni-

ties it avails them to appear on the ballot and present

themselves to the voters.

1% Conn. Gen. Stats. § 9-453 (d).

2° Conn. Gen. Stats. § 9-453(0).

= See Appendix A.

22 A major party is one whose candidate for governor received

over 20% of the total vote cast or whose candidate for the office

contested other than governor received over 10% of the total vote

cast. Conn. Gen. Stats. § 9-372(e).

23 A minor party is one whose candidate for governor received

less than 20% of the total vote cast or whose candidate for the

office contested received more than 1% but less than 10% of the

total vote cast. Conn. Gen. Stats. § 9-872(f).

If the Appellants claim herein that the reason they

say

want to participate in a party primary is to have a

in who the ultimate choice of the party

to interested persons. Therefore, it is contended that the

claim raised herein does not present a true case or con-

troversy.

3. Participation by the Appellants

It is submitted that being an “unaffiliated voter” is

merely a status. The person who is “unaffiliated” can

change that status at will by enrolling with a party,

major or minor, of his choosing. This Court has neither

the power, nor the desire it is assumed, to require that the

Appellants remain unaffiliated.

The Appellants claim that they have a right not to

associate with others by refusing to join a party. Neither

the Republican nor the Democratic Parties of Connecticut

dispute that right. But they also claim that mere en-

rollment with a party does not in any way do violence to

an individual’s freedom of thought. Within both parties

there are people with political philosophies of every im-

aginable stripe. All of these people are welcomed into the

respective political organizations, since they enrich the

philosophy of the party as a whole.

If indeed, the Appellants wish to influence the ultimate

choice of a candidate by either party, they need only go

through the mechanical process of affiliation.“ This

process in no way challenges his freedom of thought or

Conn. Gen. Stats. § 9-20.

association. All it does is make him eligible to participate

in party affairs, including any primaries of that party

that occur within his town, district or the State. The

Appellants herein are free to avail themselves of that

process and by doing so would render their claim moot.

The Appellants themselves note that the “parties make

no attempt to screen potential members to ensure that

they adhere to a few vague principles that may be identi-

fied 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 his princi-

ples.” ** If that is the case, where is the controversy

herein that merits plenary consideration by this Court?

It is respectfully submitted that based on the Appellants’

own argument, there simply is not a problem of constitu-

tional dimension for review by this Court.

25 Jurisdictional Statement, p. 25.

21

CONCLUSION

For all of the reasons stated herein, this Court

should affirm the judgment of the United States

District Cour for the District of Connecticut here ap-

pealed from because the Appellants have failed to

present a substantial question for the decision of

this Court.

Attorney for Appellee Democratic

Party of the State of Connecticut

By JAMES A. WADE

ROBINSON, ROBINSON & COLE

799 Main Street

Hartford, Connecticut 06103

Ite Attorney

Attorney for Appellee Republican

Party of the State of Connecticut

By CARL CELLA

One Broadway

North Haven, Connecticut 06473

Ite Attorney

Dated: November 7, 1976

APPENDIX

la

Affidavit of Clifton A. Lenhardt, Deputy Secretary

of the State

UNITED STATES DISTRICT COURT

FOR THE

DISTRICT OF CONNECTICUT

Civil Action No. H 76-20

— — > —— ——-—d

NATHRA NADER and ALBERT C. SNYDER, IR.,

Plaintiffs,

vs.

GLORIA SCHAFFER, Secretary of the State, State of

Connecticut,

DEMOCRATIC PARTY OF THE STATE OF CONNECTICUT and

REPUBLICAN PARTY OF THE STATE OF CONNECTICUT,

Defendants.

— — 2 —— —

I, Clifton A. Leonhardt, being first duly sworn accord-

ing to law, depose and say:

1. That I am the Deputy Secretary of the State for

the State of Connecticut.

2. That the Elections Division of the Office of the

Secretary of the State lies within my general supervisory

authority.

8. That at my direction the staff of the Elections

Division of the Office of the Secretary of the State has

researched the number of candidacies which have achieved

major party status in state elections, exclusive of Demo-

2a , ga

cratic and Republican party nominees, from 1966 through NUMBER OF CANDIDACIES WHICH HAVE

1974 ; the number of candidacies which have achieved ACHIEVED MAJOR PARTY STATUS IN STATE

minor party status in state elections from 1966 through ELECTIONS

1974; and the number of nominating petition candidates |

in state and municipal elections, not including primary (Exclusive of Democratic and Republican Party

petition candidates, from 1966 through 1975. : Nominees) .

4. Attached hereto and made a part hereof are the 1966 - 1974

results of such research which are certified to be true 1966—None

and correct.

. 1968—None

Dated at Hartford, Connecticut this 10th day of May, 1970— 7 U.S. Senator: 1

1976. State Senator: 2

State Representative: 2

7s, CLIFTON LEONHARDT

CLIFTON A. LEONHARDT Judge of Probate: .

Deputy Secretary of the State 1s72— 1 State Representative

75 wy 10th day NUMBER OF CANDIDACIES WHICH HAVE

2220 . ACHIEVED MINOR PARTY STATUS IN STATE

JOSEPH W. GAYDOSH ELECTIONS

Notary Public 1966 - 1974

My WW Expires: 1966— 18 Representative in Congress: 2

1-77 State Senator: 2

State Representative: 9

1968— 5 Electors of President and Vice

President (slate) : 1

Representative in Congress: 2

State Senator: 1

State Representative: 1

1970— 8 Representative in Congress: 2

State Senator: 3

State Representative: 3

1972— 13 Electors of President and Vice

President (slate) : 1

Representative in Congress: 1

|

4a

State Senator:

State Representative:

Judge of Probate:

1974— 21 Governor/Lieutenant Governor:

Secretary of the State:

Treasurer:

Comptroller:

U.S. Senator:

Representative in Congress:

State Senator:

State Representative:

Judge of Probate:

NUMBER OF NOMINATING PETITION CANDI-

DATES IN STATE AND MUNICIPAL

— 838 8 — — — —— — 9 —

ELECTIONS

(Not including primary petition candidates)

1966 - 1975

Petitions Petitions

Approved Disapproved *

1966— 24 16

1967— 39 3

1968— 7 7

1969— 170 30

1970 — 24 None

1971— 212 30

1972— 23 9

1973— 192 24

4974— 29 15

1975— 249 13

Total 969 147

May include some candidacies subsequently withdrawn

* Including petitions issued but not filed