Petition — Dean v. Austin

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No. 79- 979 |

IN THE TK JR CLERRE

Supreme Court of the Anited States

OCTOBER TERM, 1979

MAX DEAN, individually and as a candidate for

Congress (7th District Michigan) on the United States

Labor Party ticket, MELVIN P. BROWN, individually

and as candidate for United States Senator (Michigan)

on the United States Labor Party ticket, PETER

SIGNORELLI and SUSANNE DALTO, individually,

and as the candidates respectively for the office of

Governor and Lieutenant Governor (Michigan) on the

United States Labor Party ticket, and KENNETH

DALTO individually and as State Chairman of the

United States Labor Party and the UNITED STATES

LABOR PARTY, a political party committee,

Petitioners,

Me

RICHARD AUSTIN, in his official capacity as

Secretary of State of Michigan, BERNARD J. APOL,

in his official capacity as Director of Elections, and

Secretary of the Michigan State Board of Canvassers,

NANCY CHASE, WALLACE RILEY, JESSE

DILLARD and WALTER OLIVER in their capacities

as Members of the STATE BOARD OF

CANVASSERS for the STATE OF MICHIGAN and

the STATE OF MICHIGAN,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

James F. Schoener

2033 M Street, N.W.

Suite 504

Washington, D.C. 20036

Attorney for Petitioners

INDEX

Petition for Writ of Certiorari

to the United States Court of

Appees tor tee Sumte Cifcunt ...................

AT

oa 2

Questions Presented ...............

Constitutional Provisions ...........

Provisions of Michigan Law .................

Cee oc eee ee we ee

Ss i a ar rrr

Conclusion

Appendix:

A. Memorandum Opinion and Order of the

United States District Court for the

Eastern District of Michigan,

Southern Division .....

B. Opinion of the United States Court of ae, .

Appeals for the Sixth Circuit ............

C. Order of the United States Court of

Appeals for the Sixth Circuit ............

D. Hudler v. Austin: Opinion ................

Summary Affirmance ..................

TABLE OF CASES AND AUTHORITIES

Cases:

Gomillion v. Lightfoot 364 U.S. 339 ...........44.. 12

Griffin v. Burns 570 F.2d. 1065

(Ist Cir. 1978) . Tee ere

Hicks v. Miranda 422 U. S. 332 (1975) . Sect eee oe reer 8

Hudler v. Austin 419 F. Supp. 1002

rea 2,6,7,8,11

Illinois State Board of Elections v.

Socialist Workers Party U.S

59 L.Ed. 230,

, ge) ERRNO ee a eee eee ee ee 10

Mandel v. Bradley 432 U.S. 173 (1976) ........... 8,9

Southern Pacific Terminal Co. v. 1.C.C.

219 U.S. 498 (1911). ee ee

Storer v. Brown 415 U. S. "724 (1974) . Pewee ee ce aes 9

Super Tire Engineering v. McCorkle

416 U.S. 115 (1974) . PINGS A

Williams v. Rhodes 393 U. s. 23 (1968) . Panes se eat tie 12

Statutes:

M.C.L.A. 168.685, 168. sii & 168. err

(PUBLIC ACT 94) . er oes Sue

No. 79-

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1979

MAX DEAN, individually and as candidate for

Congress (7th District Michigan) on the United States

Labor Party ticket, MELVIN P. BROWN, individually

and as candidate for United States Senator (Michigan)

on the United States Labor Party ticket, PETER

SIGNORELLI and SUSANNE DALTO, individually,

and as the candidates respectively for the office of

Governor and Lieutenant Governor (Michigan) on the

United States Labor Party ticket, and KENNETH

DALTO individually and as State Chairman of the

United States Labor Party and the UNITED STATES

LABOR PARTY, a political party committee.

Petitioners,

Vv.

RICHARD AUSTIN, in his official capacity as

Secretary of State of Michigan, BERNARD J. APOL,

in his official capacity as Director of Elections, and

Secretary of the Michigan State Board of Canvassers,

NANCY CHASE, WALLACE RILEY, JESSE

DILLARD and WALTER OLIVER in their capacities

as Members of the STATE BOARD OF

CANVASSERS for the STATE OF MICHIGAN and

the STATE OF MICHIGAN,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Max Dean and other above named petitioners and the

U.S. Labor Party, a political party committee, pray that

a writ of certiorari issue to review the judgment of the

United States Court of Appeals for the 6th Circuit entered

in this case on July 16, 1979.

OPINIONS BELOW

The opinion of the United States District Court is

unreported; a copy is set forth in Appendix A. The

opinion of the Court of Appeals has been reported in 602

F.2d 121, a copy of which is set forth in Appendix B.

JURISDICTION

The judgment of the Court of Appeals was entered on

July 16, 1979. A timely petition for rehearing en banc was

denied on August 23, 1979, and this petition for writ of

certiorari was filed within 90 days of that date. A copy of

that order is attached as Appendix C. The jurisdiction of

this Court is invoked under 28 U.S.C. §1254 (1).

QUESTIONS PRESENTED

1. Is a decision on a provision in the election law of the

State of Michigan that operates to disqualify minor

political parties from the election ballot rendered

moot solely by reason of the fact that the election

has been held?

2. Can the State of Michigan utilize election procedures

and programs which operate to disqualify the count-

ing of votes cast in support of minor political parties

and then disqualify the party from the ballot because

of insufficient demonstration of voter support?

3. Must the petitioner, a minor political party commit-

tee, demonstrate that the voting instructions and

election procedures were so deceptive as to make it

impossible for a voter to cast his vote for such party

in order to find such election law to be a prejudicial

burden on its Constitutional rights?

4. Did the trial court and the Court of Appeals err in

relying on summary affirmance of Hudler v. Austin

rather than undertake an independent examination

of the issues on the merits?

5. Do the provisions of the Michigan election law cause

unconstitutional burdens on minor political parties

either in concept or in effect?

CONSTITUTIONAL PROVISIONS

The following provisions of the United States Consti-

tution are relevant to the questions presented.

Article III

Section 2

The Judicial Power shall extend to all Cases, in Law

and Equity, arising under this Constitution, the Laws of

the United States, and Treaties made, or which shall be

made, under their Authority;—to all Cases affecting Am-

bassadors, other public Ministers and Consuls,—to all

Cases of admiralty and maritime jurisdiction;—to Contro-

versies between two or more States; between a State and

Citizens of another State;—between Citizens of different

States;—between Citizens of the same State claiming Land

under Grants of different States, and between a State, or

the Citizens thereof, and foreign States, Citizens or Sub-

ject.

Amendment I

Congress shall make no law respecting an establishment

of religion or prohibiting free exercise thereof; or abridg-

ing the freedom of speech, or of the press; or of the right

of the people peaceably to assemble, and to petition the

Government for a redress of grievances.

Amendment XIV

Section |

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens

of the United States and the State wherein they reside.

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws.

PROVISIONS OF MICHIGAN LAW

The provision of the Michigan Election Code which

petitioner contends is offensive to the United States Con-

stitutional provisions quoted is as follows. This provision

is also sometimes referred to as Act 94 of the Public Acts

of 1976.

Primary ballot; listing of newly qualified parties.]

Sec. 560b. (1) The primary election ballot shall pro-

vide a separate column or row which shall contain

the name of each political party qualified as a party

under section 685 by filing of petitions in a period of

2 years before that primary ballot.

Statement preceding listing.] (2) The names of the

parties as provided in subsection (1) shall follow a

statement “‘I desire that the party indicated shall have

its name, party vignette, and candidates listed on the

next general election ballot.’ This statement shall

appear only once on a ballot.

Voting.] (3) A voter shall be entitled to vote for

candidates of | political party only, or to indicate a

desire that 1 party and its candidates appear on the

general election ballot.

Vote required to qualify party listing on general

election ballot.] (4) To qualify to have its name, party

vignette, and candidates appear on the general elec-

tion ballot a party whose party name only appears

on the primary ballot shall receive a vote total of

more than 3/10 of 1% of the total number of voters

appearing at that primary election as shown by the

poll books.

(MCL §168.560b.)

STATEMENT OF THE CASE

Petitioners were candidates for election to State and

Federal office in the 1978 election on the U.S. Labor

Party ticket. The U.S. Labor Party is a political party

which had qualified for the Michigan ballot by filing

petitions signed by registered voters numbering not less

than 1% nor more than 4% of the vote received by the

successful candidate for Secretary of State at the last

preceding election in accordance with Michigan election

statutes. In April of 1976, the Michigan legislature passed

Public Act 94 (M.C.L.A. §168.685 and 168.560a, and

168.560b) which provided, in addition to the petition

requirement, that new parties must receive a vote total of

3/10 of 1% of the total vote cast in the next primary

election. The act provided for a separate column or row

on the primary election ballot where the new parties’

names were listed following the statement, “‘I desire that

the party indicated shall have its name, party vignette,

and candidates listed on the next general election ballot.”’

This provision will be referred to hereafter as the party

qualification provision. The new parties’ candidates names

did not appear on the ballot while major parties offered

many names for office from Governor and U.S. Senator

to Drain Commissioner.

Michigan uses a primary system which allows the voter

to vote for candidates of one party only. The party

qualification provision was printed on the ballot in such

a manner as to mislead many voters to believe this was

simply a referendum matter. On voting machines, an

automatic lock out of the levers for party qualification

was created if a voter cast a vote for a single candidate in

the major parties. The new parties were the U.S. Labor

Party, Communist Labor Party, and the Socialist Workers

Party. If a vote were cast for Party qualification for one

of the new parties, the machine would lock out on the

other parties.

On computer punch cards, however, there is no way to

lock out punches made on party qualification section if

the voter had exercised his vote for one of the major party

candidates. Instead, the computer casts out the ‘“‘overvote”’

in its tallying process; thus, the vote is not counted, but

the voter gets no chance to correct his error. In the few

areas still using paper ballots, there is no automatic

prohibition on overvoting and the invalid vote is cast out

in the counting. One measurement of invalid voting is to

subtract the number of valid votes cast from the total

vote; this is called drop off or fall off. In the Michigan

primary elections held since the adoption of Act 94, the

fall off rate had been remarkably high.

In 1976, the plaintiff, U.S. Labor Party, along with

three other new parties, challenged the constitutionality

of Public Act 94. A three judge District Court held that

strict scrutiny was called for in the examination of the

challenged statutory provisions, that Act 94 imposes a

reasonable burden dictated by compelling state interests

and that the state could not have achieved its goals

through significantly less drastic means, but the Court

then suspended the effect of Act 94 because the date of

passage (April 1976) was so close to the August 3, 1976

primary. The Court held that the shortness of time to

publicize the effects of the law amounted to denial of due

process.

A critical dissent filed by Judge John Feikens pointed

out that the ‘compelling state interest” was the fear of

having more parties qualify for the ballot than the 9 that

can be accommodated on the standard voting machine.

No showing was made that this ever occurred. In addition,

the Judge pointed out the machines could accommodate

more parties if the option of single lever straight party

voting was abandoned. Judge Feikens also pointed out

that the primary is the traditional place for selecting

nominees, not putting a new party on the ticket. The

State, said Judge Feikens, has not established the necessity

of the restriction and had not met its heavy burden to

justify its actions when it “‘legislates restriction on voting

rights.” Hudler v. Austin, 419 F. Supp. 1002, at 1019.

The judgment was affirmed without a hearing on the

merits with Mr. Justice Stewart, Mr. Justice Blackmun

and Mr. Justice Poweli commenting they would postpone

jurisdiction to a hearing of the case on the merits. A copy

of Hudler v. Austin and the memorandum decision of this

Court is attached as Appendix D.

In 1978, the U.S. Labor Party as well as two other

minor parties filed petitions as required by Michigan law

to obtain status as “new” parties. In the 1978 primary

election held August 8, 1978, the vote as canvassed for

the U.S. Labor Party was insufficient to qualify the party

under Act 94 of the Public Acts of 1976, and the exemption

as granted by the District Court in Hudler v. Austin did

not apply. Consequently, petitioners, as candidates and as

the party, sought relief in the District Court. They sought

judicial action to preserve their right to appear on the

general election ballot as candidates and as a party.

Plaintiffs alleged that the State of Michigan and its

election agents failed to properly advise voters of the

intricacies of the “Party Qualification Section” of the

ballot, resulting in gross voter confusion and error. The

election officials indicated they had not received funds

from the Legislature that would allow such education and

instruction. In addition, erroneous, confusing and con-

flicting instructions were give to voters and poll workers

that resulted in the plaintiffs’ political party being denied

votes actually cast in its favor. As noted in the partial test

of computer votes cast for the U.S. Labor Party (absentee)

in the City of Detroit, ‘‘almost 99 percent were rejected”

(Opinion, Court of Appeals, p. 3).

The very operation of Act 94 was to in effect

invalidate many ballots. Michigan law requires that a

sample voting machine be available to demonstrate the

operation thereof, but the peculiarities of the ‘Party

Qualification Section” could not be programmed on the

sample voting machines used in Michigan. On the com-

puter voting apparatus used in Michigan is a permanent

instruction, “‘Vote all Pages”. This instruction would

result in disenfranchising any vote cast for plaintiffs’

political party by causing an “overvote’’. In addition, it

appeared that some election officials had a tendency to

ignore the vote count of the ‘Party Qualification Section”

since they did not believe such small numbers were

relevant to the election of persons to office, and in a

number of returns to the canvassers, these races were

ignored or overlooked. It seems to be from all the evidence

available that similar errors and confusion existed in 1976,

but the District Court had deferred the disastrcus effect

that resulted to plaintiffs until 1978. The plaintiffs, there-

fore, in 1978 sought from the District Court a declaration

that Act 94 of the Public Acts of 1976 was unconstitutional

in application since its effect was to deny to citizens their

fundamental rights as voters.

The District Court (and the Court of Appeals) placing

reliance on the previous case of Hudler v. Austin, would

not reevaluate the issues presented because of the sum-

mary affirmance of Hudler.

REASONS FOR GRANTING WRIT

SUMMARY AFFIRMANCE

Three members of this Court indicated a desire to defer

affirmance of the case of Hudler v. Austin until the Court

could hear the issues on the merits. Nonetheless both the

Trial Court and the Court of Appeals based their decisions

in part, on the fact that this Court had issued a summary

affirmance, (430 U.S. 924). This Court has noted that

‘*... the reach and content of summary actions may itself

present issues of real substance,” Hicks v. Miranda, 432

U.S. 322 at 345 n. 14 (1975), Mandel v. Bradley 432 U.S.

173 at 176 (1976). Hudler v. Austin simply held that Act

94 of the Public Acts of Michigan of 1976 could not apply

to new political parties in the 1976 election. Unnecessary

to the decision was the dicta concerning the constitution-

ality of Act 94. Indeed, the District Court indicated that

it is clear “that a State may also run afoul of the

Constitution by selecting too effective a means of limiting

ballot access,”’ Hudleg v. Austin, 419 F. Supp. 1002 at 1009

(1976). Thus, this Court is faced with the fact that Act 94

has disqualified all seven minor parties that have sought

in two elections access to the Michigan general election

ballot. For the courts of the United States to refuse

Petitioners an independent examination of the merits

under the constitutional standards of Storer v. Brown, 415

U.S. 724, is to ignore this Court’s opinion in Mandel v.

Bradley, 432 U.S. 173. In Mandel, the Court said:

‘Because of preoccupation with Salera the District

Court failed to undertake an independent examina-

tion on the merits.” Id. at 173.

In the case before this Court, the District Court refer-

ring to Hudler (at p. 70, Transcript) said, **. .. The Court

is not going to litigate it again.” The Court of Appeals

further indicated its misplaced reliance on the summary

affirmance on page 2 of their Opinion. Coupled with the

concept of mootness applied by the Court of Appeals, the

issues Petitioner asks to raise could never be addressed by

this Court; those issues could never get here.

MOOTNESS

Petitioners had hoped that the Court of Appeals would

have considered the merits, but in a departure from the

usual attitude of courts regarding election cases, that

Court found the matter to be moot. It is submitted that

the effect of Act 94 on new political parties is precisely

the case that is ‘“‘capable of repetition, yet evading review.”

Southern Pacific Terminal Co. v. 1.C.C., 219 U.S. at 515.

As this Court observed in Super Tire Engineering v.

McCorkle, 416 U.S. at 126:

“Certainly the pregnant appellants in Roe v. Wade

and in Doe v. Bolton had long since outlasted their

pregnancies by the time their cases reached this

Court. Yet we had no difficulty in rejecting sugges-

tions of mootness. Similar and consistent results were

in Storer v. Brown, Rosario v. Rockefeller, Dunn v.

Blumstein and Moore v. Ogilvie, cases concerning

various challenges to state election laws.” (Citations

omitted.)

In February of this year, this Court, in deciding a ballot

access case, commented that precedential effect of a

summary affirmance can extend no further than the

precise issues presented a: d necessarily decided. /l/linois

State Board of Elections v. Socialist Workers Party, 440

U.S. __— 59 L. Ed. 230 at 240, 99 S. Ct. 983. The Court

of Appeals in this case misreads the mootness concept of

the Illinois State Board case. In fact mootness in that case

applied only to an unauthorized agreement entered into

by the Chicago Board of Elections. The ballot access

problem was not held moot.

The Court of Appeals in this case grounded its mootness

view on the assumption that the State of Michigan will,

in the future, act differently than it has in the past two

elections. The Court seems to base constitutional rights

on a rather pious hope that “... U.S. Labor Party will

(not) be subjected to the same actions, again,’’ (Opinion,

at page 4).* It is submitted that such a view denies the

record. In the hearing conducted by the District Court,

the Elections Director indicated that the legislature had

not (and to this date, has not) authorized production of

a voter instruction manual to avoid technical errors; that

legislature has not changed the inconsistent and confusing

disqualifications section; no change in the computer vot-

ing counting system has been designed—every expectation

of another ballot access fiasco in Michigan for new parties

is all that can be anticipated.

The challenged action (or inaction) is, in its duration,

too short to be fully litigated between the August 1980

primary date and the date required to print the General

Election ballots, some 6 to 8 weeks later. This issue can

never be fully litigated prior to a general election unless

totally new and revolutionary procedures are adcpted by

*The Court puts the burden on the petitioners to prove that the

State may not “‘amend its ways.”

10

Federal Courts; the period from the first Tuesday in

August to the Ist Tuesday after the Ist Monday in

November hardly leaves time for the Trial Court to hear

the evidence.

MERITS OF THE CASE

Michigan’s provision for party qualification is actually

misnamed; it should have been party disqualification. In

its Operation and effect—and probably legislative

intent**—this law creates a barrier to 3rd parties, minor

parties and new parties. The effect of Act 94 is to create

within Michigan a monopoly on political thought in the

major parties, burdens the rights of individuals to asso-

ciate for the advancement of their political beliefs, and

denies to qualified voters a choice to cast their votes

effectively. Constitutional rights cannot be placed on such

a slender reed as the concept adopted by the trial judge

who felt it was “not impossible” for a voter to avoid

confusion. Where up to 90% of voters are deprived of

their vote by a confusing law—it is the law and not the

voter that should be put to the test of reasonableness.

It is submitted that the Court of Appeals in the first

circuit more properly approached the election problem it

confronted in Griffin v. Burns, 570 F2d 1065. That court

held that the State had a burden of providing proper and

adequate election machinery.

If the decisions below should stand, a virtual monopoly

will be given the major political parties in Michigan. No

equal treatment will be accorded those voters who find a

sameness in the two major parties, with the results that

the motivating force of third party ideas, candidates and

activity that has in the past invigorated our democracy

will be lost forever.

This system, these schemes, will not stop in one state.

Bureaucratic influence being what it is—the ease and

efficiency of a two-party election will become a program

**See dissent of Judge Feikens in Hudler, 419 F. Supp. at 1018.

1]

that will be adopted across the land. Voters will find ‘tno

choice, but an echo.”

The power of the state to keep all political parties off

the ballot until they have enough members to win would

stifle the growth of all new parties working to increase

their strength from year to year. This concept was rejected

by this Court in Williams v. Rhodes 393 U.S. at 23. To

allow the state to stifle new parties by a technical and

confusing ballot qualification scheme is to substitute a

sophisticated mode of nuilification of the prohibited ac-

tion, Gomillion v. Lightfoot, 364 U.S. 339 (1960).

Only a complete review of the constitutionality of Act

94 of the Public Acts of Michigan as it is written and as

it operates will satisfy the constitutional tests that this

Court has announced in ballot access cases. Such a review

should be required, with the instruction on remand, that

the onus of proof must be assumed by the State when it

undertakes to restrict constitutionally protected activity.

The State should be required to prove a) that there is no

lesser way of accomplishing legitimate State ends, b) that

it will not completely eliminate ‘“‘new”’ parties, c) that the

election process will be designed to avoid voter confusion,

and d) that the State will insure that every vote cast for

a ‘‘new’’ party is accurately counted.

CONCLUSION

For the reasons stated above, the petition for certiorari

should be granted.

JAMES F. SCHOENER

2033 M Street, N.W.

Suite 504

Washington, D.C. 20036

12

APPENDIX

APPENDIX A

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CIVIL ACTION No: 78-40109

MAX DEAN, et al,

Plaintiffs,

v.

RICHARD AUSTIN, et al,

Defendants.

MEMORANDUM OPINION AND ORDER

Ata session of said Court,

held in the Federal Building, Flint, Michigan

on September 21, 1978.

PRESENT: HONORABLE JAMES HARVEY

United States District Judge

The matter is before the Court on the plaintiffs’ motion

for a preliminary injunction requesting that U.S. Labor

Party candidates for various public offices be placed on

the November, 1978 ballot.

In deciding whether to grant a motion for preliminary

injunction, the Courts have looked to four different fac-

tors:

l3a

|. The significance of the threat of irreparable harm to

the plaintiff if the injunction is not granted:

2. The state of balance between this harm and the

injury that granting the injunction would inflict on the

defendant;

3. the probability that the plaintiff will succeed on the

merits;

4. the public interest.

See Stenburg v Checker Oil Co., Slip opinion 76-2330,

2689 (CA 6, April 10, 1978); 11 Wright & Miller, Federal

Practice and Procedure, Section 2948.

Applying these factors to the facts at hand, the Court

finds as follows:

1. There is a high probability that plaintiffs will suffer

irreparable injury if preliminary injunctive relief does not

issue. If plaintiffs are entitled to be placed on the Novem-

ber ballot, such relief is obviously foreclosed after the

November election has been held. McCarthy v Tribett,

421 F Supp 1193 (D Del, 1976).

2. There is a low probability that plaintiffs will succeed

in this case on the merits, as follows:

(a) In order to prevail on the merits in this case,

plaintiffs are required to show either

(i) that the voting instructions and format re-

lating to the procedure for placing new parties on the

November ballot were, by contrast to being merely con-

fusing, so deceptive as to make it impossible for a voter,

desiring to place a new party on the November ballot, to

register his vote accordingly. Compare New York State

Democratic Party v. Lomenzo, 460 F2d 250 (CA 2, 1972),

Burger v Judge, 364 F Supp 504, affirmed 414 US 1058,

38 L Ed 465; Kohler v Tugwell, 292 F Supp 978 (1968).

See also Gilhool v Chairman & Commissioners, 306 F Supp

1202 (ED Pa, 1969), affirmed 397 US 147, 25 L Ed2d 182;

or

(ii) that the voting instructions and format for

placing new political parties on the November ballot

operated in practice to make it impossible for new political

parties, exercising reasonable diligent efforts, to gain

l4a

ballot access. See Storer v. Brown, 415 US 724, 39 L Ed

714 (1973); Hudler v. Austin, 419 F. Supp 1002, 1013-14

(ED Mich, 1976), affirmed 430 US 924.

In this connection, the Court is cognizant of the follow-

ing language in Hudler v. Austin, at pp 1013-14:

“It is beyond question that legislation may achieve

constitutionally valid goals but infringe the Four-

teenth Amendment by doing so in an unconstitutional

manner. In the context of the statute challenged at

bar, this principle calls for an inquiry into whether

marshalling the required support in the time allotted

imposed a constitutionally unreasonable obstacle to

compliance.

Depriving plaintiffs of adequate time and notice

saddled them with an additional burden beyond that

considered in the court’s earlier assessment of the

likelihood of compliance if reasonable diligent efforts

are made. The short time limits, extra expense and

duplicative effort required to regenerate the support

of plaintiffs’ constituencies falls outside Storer’s “‘rea-

sonably diligent efforts’ standard and imposes an

unnecessarily prejudicial burden on the plaintiffs,

new parties seeking 1976 ballot status.”

The Court feels that, by analogy to this situation in

Hudler, the basic problem in this case is whether the State,

by the manner in which it has instructed the voters with

regard to the procedure for placing new political parties

on the November ballot, has imposed a constitutionally

unreasonable obstacle to compliance with the access re-

quirements.

(b) The Court finds that the voting instructions and

procedure for placing a new political party on the Novem-

ber ballot were not so deceptive as to make it impossible

for a voter, desiring to place a new political party on the

November ballot, to register his vote accordingly;

(c) The Court also finds that voting instructions and

procedures for placing new political parties on the No-

vember ballot did not operate in fact to make it impossible

for a party, using reasonably diligent efforts, to comply

15a

with the requirements for access to the November ballot.

In so finding, the Court is mindful that, as stated in

Hudler v Austin, supra, at page 1011

“It is implicit that the requirements of Act 94 neces-

Sitate that ‘new’ parties undertake the burden of

marshalling their own support including, among

others, those who would not otherwise attend the

primary.

The mere fact that significant effort is called for in

order to organize plaintiffs’ supporters and get out

the vote does not automatically dictate a decision

that the statute imposes an insurmountable obstacle

depriving them of all but theoretical access to the

ballot. ‘Hard work and sacrifice by dedicated volun-

teers are the lifeblood of any political organization.’

The burden Act 94 imposes toward this end is

simply one of publicizing a new primary obligation

to the electorate in general and plaintiffs’ constituen-

cies in particular. Measured against the statutes up-

held in American Party of Texas, supra, the activity

necessary to thus mobilize the new parties’ support

would not require such an overwhelming additional

expenditure of time and effort as to fall beyond the

scope of Storer’s ‘reasonably diligent efforts’ stand-

ard.”

The Court believes that this burden encompasses the

explaining of the mechanical voting procedure, and that

this burden was not materially aggravated by the manner

in which the state put the question of ballot access to the

voters in the August, 1978 primary.

(3) The harm to the defendants by the granting of

preliminary injunction relief is substantial. Ordering the

' plaintiffs to be placed on the November ballot would -

contribute to voter confusion and the cvercrowding and

clogging of the state election machinery, problems the

State sought to avoid by the passing of Public Act 94. See

Hudler v Austin, supra, at 1013.

(4) As the defendants also represent the public interest

in this matter, as reflected in the passage of Public Act

l6a

94, the granting of preliminary injunctive relief would

also be inimical to the public interest.

On the basis of these findings, the Court concludes that

preliminary injunctive relief should not be granted in this

case. The Court notes, in this connection, that when the

granting of preliminary injunctive relief would, for all

practical purposes, grant the plaintiffs the relief which

they ultimately seek, the showing of likelihood of success

on the merits must be particularly sharp. See Wright &

Miller, Federal Practice and Procedure, Section 2948. As

reflected in the Court’s findings, the plaintiffs have failed

to so demonstrate.

Accordingly, plaintiffs’ motion for preliminary injunc-

tion ordering the placement of their candidates on the

November ballot is DENIED.

IT IS SO ORDERED.

/s/JAMES HARVEY

JAMES HARVEY

UNITED STATES

DISTRICT JUDGE

17a

APPENDIX B

No. 78-1491

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Appeal from the United States District Court

for the Eastern District of Michigan

Max Dean, et al.,

Plaintiffs-A ppellants,

A

Richard Austin, et al.,

Defendants-A ppellees.

Decided and Filed July 16, 1979

Before: Edwards, Chief Judge,

Celebrezze, Circuit Judge,

and Peck, Senior Circuit Judge.

EDWARDS, Chief Judge. Appellants Dean et al., as

representatives of the U.S. Labor Party in Michigan,

brought this action against the Michigan Secretary of

State, seeking a preliminary injunction requiring Austin

to put the U.S. Labor Party candidates on the November,

1978 ballot. After hearing, the preliminary injunction was

denied by the District Judge.' Of course, the election has

1. By a stipulation dated October 9, 1978, both parties agree that

the District Court opinion denying preliminary injunction is to be

treated as a final order “‘adjudicating the controlling questions of

law involved in this matter.”

18a

long since been held and under normal standards since

the relief sought is now impossible, this case would be

moot.

Dean argues, however, that this case is one of the

exceptions to the mootness rule because it was impossible

in 1978 (and will be in future elections) to secure adequate

review, particularly at the appellate level, of the claimed

constitutional denials involved here. Thus this case might

\ be said to belong in the category of cases which repeti-

tively present constitutional issues which are of a class

“capable of repetition, yet evading review.” Southern

Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911).

The major answer to this appeal is found in Hudler v.

~_ Austin, 419 F.Supp. 1002 (E.D. Mich.), summarily aff d

430 U.S. 924,(1976), in which a divided three-judge court

rejected a federal constitutional attack upon 1976 Mich.

Pub. Act 94 (M.C.L.A.§ 168.685 and §§ 168.560a and

.560b) and denied relief, and the Supreme Court subse-

quently summarily affirmed, 430 U.S. 924 (1976) (with

three justices voting to hear the case on the merits.) This

court, of course, has no power to rehear the constitution-

ality of Public Act 94.

If there is a new issue not precluded from our review by

the Supreme Court affirmance just referred to, it is that

the procedures for implementing Public Act 94 in the

1978 election were unconstitutional in their impact upon

the legislative scheme. Examination of the evidence pre-

sented at the three-day hearing before the District Judge

strongly suggests that many voters lost their ballots by

their mistakes. The sample ballots which were introduced

to illustrate how Public Act 94 had been implemented in

1978 were at least confusing. Appellants argue that when

applied to the provisions of Public Act 94 the instructions

constitute constitutional error under the “strict scrutiny”

standard established by Supreme Court decisions. See

Illinois State Board of Elections v. Socialist Workers

Party,——U.S.——, 99 S.Ct. 983 (1979).

The appellants reinforce their claims by citing the high

percentage of voided ballots among the ballots which had

19a

been cast at the primary for placing their party on the

new election ballot:

Plaintiffs obtained retabulations of the U.S. Labor

Party voie in three election districts: the absentee vote

for Detroit, 15% of the vote in Kent County, and

15% of the vote in Genesee County. George Hersteck,

an employee for the Michigan State Election Divi-

sion, testified to these results:

Out of 27,877 absentee ballots cast for the City of

Detroit, 609 votes were cast for the U.S. Labor Party.

One was officially counted, 608 votes were rejected.

In the Kent County sample of 6,803 votes, 70 people

voted for the U.S. Labor Party. 6 votes were officially

counted, 64 votes were rejected. In the Genessee

County sample of 10,357 votes, 498 people voted for

the U.S. Labor Party. 8 votes were officially counted,

490 were rejected.

This means that 1160 of 1175 votes were rejected,

almost 99 percent.

Clearly the Michigan Secretary of State has no duty to

conduct a campaign to convince Michigan voters that the

U.S. Labor Party should have a place on the ballot. Nor

can he and his election aides prevent all voter errors. On

the other hand, the official instructions to voters should

contain as clear and understandable warnings as possible

so that the persons desirous of casting a vote for a minor

party to have a place on the ballot could do so without

excessive risk of a mistake causing disqualification of their

ballots. The high percentage of disqualification in the

1978 election strongly suggests that the instructions were

not easily understood. It appears that a specific warning

in the Party Qualification Section of the ballot to the

effect that the entire partisan ballot would be voided if a

vote were cast there and in either major party column,

might have served to mitigate the risk of voter mistake.

However, we do not reach the question of whether such

a lack of warning constituted a constitutional deprivation

because we find plaintiffs’ suit moot and do not find that

it meets the test for the exception to the mootness doctrine.

20a

In Illinois State Board of Elections, supra the Supreme

Court stated the test for the exception as follows:

In Weinstein v. Bradford, 423 U.S. 147, 149, 96

S.Ct. 347, 349, 46 L.Ed.2d 350 (1975), we elaborated

on this exception, holding that a case is not moot

when:

(1) the challenged action was in its duration

too short to be fully litigated prior to its cessation

Or expiration, and (2) there was a reasonable

expectation that the same complaining party

would be subjected to the same action again.”

99 S.Ct. at 992.

In distinguishing the case before it from Weinstein and

Southern Pacific the Supreme Court said:

Although the first branch of the test is satisfied here,

appellant has presented no evidence creating a rea-

sonable expectation that the Chicago Board will

repeat its purportedly unauthorized actions in sub-

sequent elections. Appellant’s conclusory assertions

that the actions are capable of repetition are not

sufficient to satisfy the Weinstein test, particularly

since appellant does not contend that the Chicago

Board has ever attempted previously to conclude

litigation without its approval.

Id.

Similarly we do not believe that here plaintiffs have

offered any evidence which would create a reasonable

expectation that the U.S. Labor Party will be subjected to

the same actions again. We note that plaintiffs do not

challenge the good faith of defendants nor do they allege,

that defendants intended to discriminate against them,

either of which might create such a reasonable expectation

of repetition.

Briefly put, what we hold here is that Michigan election

officials may have made mistakes in the instructions

2la

pertaining to Public Act 94 in the 1978 election but that

there is no reason to believe from this record that any

inadequacy of the ballot instructions in 1978 will be

repeated in future elections. Therefore, finding the present

appeal moot, we order it dismissed.

22a

APPENDIX C

No. 78-1491

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Order

MAX DEAN, et al.,

Plaintiffs-A ppellants,

v.

RICHARD AUSTIN, et al., |

Defendants-A ppellees.

Before: EDWARDS, Chief Judge,

CELEBREZZE, Circuit Judge,

PECK, Senior Circuit Judge.

On receipt and consideration of a petition for rehearing

and suggestion for rehearing en banc in the above-styled

case; and

No judge in active service in this court having moved

for rehearing en banc and the motion therefore having

been referred to the panel which heard the case; and

The panel having noted nothing of substance in said

motion for rehearing which had not been carefully con-

sidered before issuance of the court’s opinion,

Now, therefore, the motion for rehearing is hereby

denied.

23a

Entered by order of the

Court

/s/John P. Hehman

Clerk

24a

APPENDIX D

419 FEDERAL SUPPLEMENT 1002

James HUDLER, et al.,

Plaintiffs,

v. Civ. No. 6-71189

Richard H. AUSTIN, in his official capacity as Secre-

tary of State

and

Bernard J. APOL, in his official capacity as Director of

Elections and Secretary of the State Board of Canvas-

sers for the State of Michigan,

Defendants

Stephanie ALLAN et al.,

Plaintiffs,

v. Civ. No. 6-71249

Richard AUSTIN, Individually and in his official ca-

pacity as Secretary of State, et al.,

Defendants

25a

UNITED STATES DISTRICT COURT

E.D. Michigan, S.D.

Aug. 18, 1976

Before ENGEL, Circuit Judge and GUY and FEI-

KENS, District Judges.

OPINION

GUY, District Judge.

Plaintiffs in this action challenge the constitutionality

of certain of Michigan’s election statutes, i.e., M.C.L.A.

§ 168.685 and §§ 168.560a and 168.560b, providing for the

qualification of “new” parties for general election ballot

positions. ‘“‘New” parties are those parties who either

failed to run candidates for office in the last state-wide

election or whose principal candidate failed to obtain 1%

of the total number of votes cast for the successful

candidate for Secretary of State in such election. M.C.L.A.

§ 168.560a.

Prior to the passage of the challenged sections, the

Michigan election law only required that “‘new’’ parties,

to qualify for ballot position, must submit petitions bear-

ing the signatures of registered electors equivalent to not

less than 1% nor more than 4% of the vote received by the

successful candidate for Secretary of State at the last

election. Plaintiff political parties have consistently satis-

fied this requirement through 1976.

In April of 1976, the Michigan legislature passed Public

Act 94 (M.C.L.A. § 168.685 and §§ 168.560a and 168.560b)

providing, in addition to the petition requirement, that

new parties must receive a vote total of three-tenths of 1%

of the total number of voters appearing at the primary as

shown by the poll books. A separate column or row on

the primary election ballot is to list the names of those

parties having met the petition requirement following the

statement, “‘I desire that the party indicated shall have its

name, party vignette, and candidates listed on the next

general election ballot.”” M.C.L.A. § 168.560b(1), (2), (4).

26a

Thus, a voter at the primary may vote for the candidates

of any one party listed on the ballot or indicate a desire

for a ballot position for a “new” party and its candidates

at the next general election. M.C.L.A. § 168.560b(3).

Plaintiffs challenge Public Act 94 as (1) impermissibly

burdening the right of individuals to associate for the

advancement of political beliefs and the right of effective

franchise secured by the First and Fourteenth Amend-

ments, (2) as violative of the equal protection clause of

the Fourteenth Amendment resulting in invidious discrim-

ination against new parties and their supporters, and (3)

as contravening the due process clause of the Fourteenth

Amendment in that Act 94 was imposed after plaintiffs,

or at least some of them, had completed or nearly com-

pleted gathering petitions under the previously existing

statutory requirements and so close to the primary date

as to effectively deprive them of the opportunity to apprise

the voting public in general, and their supporters in

particular, of the necessity of primary election support if

the ‘‘new” parties in question are to appear on the

November general election ballot.

I.

The First Amendment’s protection of the right of

franchise is ‘“‘a fundamental political right because it is

preservative of all rights.” Yick Wo v. Hopkins, 118

U.S. 356, 370, 6 S.Ct. 1064, 1071, 30 L.Ed. 220 (1886). It

has clearly been recognized, however, that each state has

a legitimate interest, if not a duty, to protect the integrity

of its political processes from frivolous or fraudulent

candidacies, and is not constitutionally obligated to pro-

vide instantaneous access to the ballot. Jenness v. Fortson,

403 U.S. 431, 432, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971);

Storer v. Brown, 415 U.S. 724, 736, 94 S.Ct. 1274, 39

L.Ed.2d 714 (1973). Indeed, Williams v. Rhodes, 393 U.S.

23, 89 S.Ct.5, 21 L.Ed.2d (1968), a leading case dealing

with this genera! subject, noted that at least 42 of the

States impose on “new” parties a petition requirement

27a

similar to that which has existed as part of the Michigan

law. /d. at 33n, 89 S.Ct.5. These exercises of legislative

power are based on Article 1, Section 4, Clause | of the

Constitution authorizing the states to prescribe “(T]imes,

Places, and Manner of holding Elections for Senators and

Representatives.” The mere existence of restrictions on

ballot access, therefore, raises no issue of validity unless

they violate prohibitions elsewhere in the Constitution.

Williams, supra, 393 U.S. at 29, 89 S.Ct. 5.

In setting forth the standard against which access to

the ballot restrictions should be tested, the majority in

Williams indicated that any restrictions on such funda-

mental rights as are involved here would receive strict

scrutiny, and that the burdens placed upon the rights of

franchise and association could only be sustained if jus-

tified by a “compelling state interest.” 393 U.S. at 31, 89

at. 5.

Although striking down the Ohio election laws involved

as an “entangling web” which “made it virtually impos-

sible for a new political party ... to be placed on the

State ballot ...”, the court, as pointed out in Justice

Warren’s dissent, gave little guidance to either the states

or other courts as to what constitutes a reasonable ballot

regulation. 393 U.S. at 69-70, 89 S.Ct. 5.

Both the dissent and the majority in Williams agree that

a state can condition ballot regulation “upon at least

three considerations—a substantial showing of voter in-

terest in the candidate seeking a place on the ballot, a

requirement that this interest be evidenced prior to the

election, and a party structure demonstrating some degree

of political organization.” 393 US. at 70, 89 S.Ct. at 31.!

The application of the “strict scrutiny’’ test and its inter-

relation with legitimate state purposes in regulating ballot

access has been elaborated upon and qualified in other

Supreme Court cases.

1. Although the above quoted language is from Justice Warren's

dissent, it is that portion of his dissent in which he indicates agreement

with the majority on the above enumerated principles.

28a

“The rights of voters and the rights of candidates

do not lend themselves to neat separation; laws that

affect candidates always have at least some theoretical

correlative effect on voters. Of course, not every

limitation or incidental burden on the exercise of

voting rights is subject to a stringent standard of

review. McDonald v. Board of Election, 394 U.S. 802

[89 S.Ct. 1404, 22 L.Ed.2d 739] (1969). [The filing

fee statute at issues] does not place a condition on

the exercise of the right to vote, nor does it quanti-

tatively dilute votes that have been cast. Rather, [the

filing fee statute]creates barriers to candidate access

to the primary ballot, thereby tending to limit the

field of candidates from which voters might choose.

The existence of such barriers does not of itself

compel close scrutiny. Compare Jenness v. Fortson,

403 U.S. 431 [91 S.Ct. 1970, 29 L.Ed.2d 554] (1971),

with Williams v. Rhodes [supra]. In approaching

candidate restriction, it is essential to examine in a

realistic light the extent and nature of their impact

on voters.’ Bullock v. Carter, 405 U.S. 134, 143, 92

S.Ct. 849, 856, 31 L.Ed.2d 92 (1971).

Although there appears to be a variance among the

decided cases as to when the “strict scrutiny” standard is

to be applied, it is clear that in all the cases dealing with

this subject there is a balancing of the burden of the

restrictions against the interest of the state in their pro-

mulgation.

American Party of Texas v. White, 415 U.S. 767, 780,

94 S.Ct. 1296, 1305, 39 L.Ed.2d 744 (1973) notes:

“[W]hether the qualifications for ballot position

are viewed as substantial burdens on the right to

associate or as discriminations against parties not

polling 2% of the last election vote, their validity

depends upon whether they are necessary to further

compelling state interests.”’

Storer, supra, 415 U.S. at 729, 94 S.Ct. at 1278, states

with reference to Ohio’s statutes at issue in Williams:

29a

“Because these restrictions, which were challenged

under the Equal Protection Clause, severely burdened

the right to associate for political purposes and the

right to vote effectively, the Court, borrowing from

other cases, ruled that discriminations against new

parties and their candidates had to be justified by

compelling state interests.”’

See also Kusper v. Pontikes, 414 U.S. 51, 58, 94 S.Ct. 303,

38 L.Ed.2d 260 (1973); Mogk v. City of Detroit, 335

F.Supp. 698 (E.D.Mich. 1971) (three-judge court).

Williams’ assessment of the constitutional impact of the

burden imposed by Ohio’s challenged election law was

that it made it “virtually impossible for any party to

qualify on the ballot except the Republican and Demo-

cratic Parties.’’ 393 U.S. at 25, 89 S.Ct. at 8. Although

the facts in this case do not support such a conclusion

with respect to Act 94, the court does conclude that strict

scrutiny is called for in the examination of the challenged

Michigan statute because the candidate restrictions at

issue have a real and appreciable impact on those citizens

and voters who organized and support the “tnew”’ parties

bringing this action and constitute a ‘‘substantial”’ burden

on their rights to associate and exercise an effective

franchise. Petition signatures in excess of 175,000 have

been submitted for the 1976 election on behalf of the

seven new parties at bar. Unless the .3% primary perform-

ance is now satisfied the candidates of those “‘new”’ parties

will be denied a position on the general election ballot in

November. In balancing these “‘substantial burdens”

against the “‘compelling state interest,’ the following

principles are helpful.

First, imposition of even substantial restriction on the

right to vote or associate does not automatically invalidate

the statute which has that effect. Storer, supra, 415 U.S.

at 729, 94 S.Ct. 1274. Although the court in Storer found

a substantial burden to be imposed by the state statute,

the court concluded, in part, that California’s six month

disaffiliation requirement for independent candidacies

30a

“furthered a compelling interest’? and was an “essential

part of its over-all mechanism to achieve its acceptable

goals.” /d. at 736, 94 S.Ct. at 1282.

Second, the balancing of “substantial burden” against

“compelling state interest” is largely a matter of degree.

[T]he rule fashioned by the Court to pass on

constitutional challenges to specific provisions of

election laws provides no litmus-paper test for sepa-

rating those restrictions that are valid from those

that are invidious under the Equal Protection Clause.

The rule is not self-executing and is no substitute for

the hard judgments that must be made. Decision in

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

degree,’ Dunn v. Blumstein, [supra, 405 U.S. 330 at

348, 92 S.Ct. 995, at 1006, 31 L.Ed.2d 274 (1971)],

very much a matter of ‘considering the facts and

circumstances behind the law, the interests which the

State claims to be protecting, and the interests of

those disadvantaged by the classification.’ Williams

v. Rhodes, supra, [393 U.S.] at 30 [89 S.Ct. 5, at 10);

Dunn v. Blumstein, supra, [405 U.S.] at 335 [92 S.Ct.

995, at 999].”’ Storer, supra, 415 U.S. at 730, 94 S.Ct.

at 1279.

The “matter of degree” test can be further illustrated

by comparing, for example, Rosario v. Rockefeller, 410

U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1 (1973), (11 month

waiting period after changing parties held necessary to

prevent inter-party raiding) with Kusper v. Pontikes, 414

U.S. 51, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973), (23 month

waiting period not valid); and Dunn v. Blumstein, supra,

(one year residency requirement unreasonable) with Mar-

ston v. Lewis, 410 U.S. 679, 93 S.Ct. 1211, 35 L.Ed.2d 627

(1972), (50 days upheld).

Applied to the facts in this case, the state interest

standard requires this court to answer two questions: first,

whether Michigan’s interest underlying the passage of

Public Act 94 is ‘‘compelling”’, and second, whether Act

94 is “necessary” to further that interest.

3la

Looking first to the “facts and circumstances behind

the law,” it is appropriate to review the results in Michi-

gan’s recent elections conducted under the former statute

requiring only 1% petition support to obtain ballot status.

In 1968, two of the plaintiff new parties at bar and four

new parties in total ran candidates. The principal candi-

date of only the American Independent Party polled votes

in excess of the minimum number of petition signatures

required to be submitted, thereby qualifying for automatic

ballot status. In 1970, the same two plaintiff new parties

which ran candidates in 1968 again ran a slate of candi-

dates and again received substantially fewer votes than

the number of signatures submitted. In 1972, four of the

plaintiff new parties and five new parties in all ran slates

of candidates and the principal candidate of only two, one

being the plaintiff Human Rights Party, polled votes in

excess of their petition support. In 1974, four new parties

(all plaintiffs at bar) ran slates of candidates, and the

principal candidate of none polled votes equivalent to the

number of petition signatures necessary to retain ballot

Status. Of the remaining new parties, the party polling the

most votes at each election received only a fraction of the

petition support it had submitted. (Approximately 35% in

1968, 16% in 1970, 20% in 1972 and 11% in 1974).

It would thus appear that the petition signatures do not

accurately predict the actual voting patterns of those who

sign. Indeed, plaintiffs’ expert on voter behavior, Dr.

Warren, conceded that signatures on petitions, such as

Michigan uses, possess no particular validity as an index

of follow-up support at the general election and are

admittedly somewhat unreliable. Dr. Warren’s testimony

indicated that the factor that petition signatures accurately

measure is the willingness to give new parties a “chance”

to appear on the ballot rather than actual support.

Preparations for the 1976 election indicated that six of

the plaintiff parties at bar would seek ballot status via

petitions, and in addition, the Human Rights Party, the

American Independent Party, and the Democratic and

Republican Parties would qualify for automatic place-

32a

ment, totalling a minimum of ten parties qualifying for

ballot status. In addition, plaintiffs state as a fact that

eleven parties may have had intentions to seek ballot

Status in the 1976 general election. Williams v. Rhodes,

supra, striking down a statutory scheme which perpetuated

a virtual monopoly by the two major parties noted:

“It is true that the existence of multitudinous frag-

mentary groups might justify some regulatory control

but in Ohio at the present time this danger seems to

us no more than ‘theoretically imaginable.’ (Empha-

sis added)

Conversely, the facts and circumstances which perpetuated

the passage of Act 94 appear to pose an existing danger

which is neither remote nor conjectural.

Defendant Apol, State Director of Elections, testified

that Michigan’s voting machines have a nine-party capac-

ity and the only feasible ways a ballot having greater than

that number could be accommodated would be by paper

ballots, two machines for each voter, or punch cards if

the new parties ran limited slates. He stressed that paper

ballots, although currently in use, are an extremely cum-

bersome method utilized only in a few of Michigan’s

smaller counties and accounted for only 5.7% of the 1974

returns. Defendant Apol further testified that the large

scale use of paper ballots would over burden and clog the

Sstate’s election machinery and that the number of parties,

candidates and offices involved would cause voter confu-

sion and delay. His testimony also indicated that there is

no voting machine available on the market with the

capacity to handle more than nine parties and still provide

the straight party ticket option that Michigan law man-

dates. See M.C.L.A. § 168.705 (paper ballots), § 168.775

(voting machines), § 168.795 (electronic voting machines).

In response to plaintiffs’ assertion that the ‘“‘Ransom-

Shoup” machine has a capacity in excess of nine parties

as evidenced by its use in certain other states, Mr. Apol

indicated that the Ransom-Shoup machine cannot be used

33a

in Michigan because it cannot handle the number of

offices to be voted upon at the general election.

The facts and circumstances underlying the passage of

Public Act 94 may be summarized as follows: (1) over a

ten-year period, the petition requirement for ballot access,

standing alone, proved to be an imprecise tool for meas-

uring true voter support; and (2) in 1976, more new

parties sought to qualify by the petition method than it

was technically possible for the state’s voting machines to

handle. -Of Michigan’s 6,972 precincts, 4,322 are serviced

by voting machines.

The interest the legislature sought to protect falls

squarely within Supreme Court pronouncements of legit-

imate and compelling state interests. In Jenness, the court

said:

“There is surely an important state interest in requir-

ing some preliminary showing of a significant mod-

icum of support before printing the name of a polit-

ical Organization’s candidate on the ballot—the

interest, if no other, in avoiding voter confusion,

deception and even frustration of the democratic

process at the general election.” 403 U.S. at 442, 91

S.Ct. at 1976.

Bullock, supra, subsequently noted that:

[The] State has a legitimate interest in regulating

the number of candidates on the ballot. ... In so

doing, the State understandably and properly seeks

to prevent the clogging of its election machinery,

avoid voter confusion, and assure that the winner is

the choice of a majority, or at least a strong plurality,

of those voting, without the expense and burden of

runoff elections ... we are bound to respect the

legitimate objective of the State in avoiding over-

crowded ballots. Moreover, a State has an interest,

if not a duty, to protect the integrity of its political

process from frivolous or fraudulent candidacies.”

(Citations omitted.) 405 U.S. at 145, 92 S.Ct. at 857.

34a

Both Storer, supra, and American Party of Texas, supra,

more recently confirm the compelling nature of these

interests. 415 U.S. at 732, 94 S.Ct. 1274; 415 U.S. at 782n,

94 S.Ct. 1296; Lubin v. Panish, 415 U.S. 709, 94 S.Ct.

1315, 39 L.Ed.2d 702 (1973), similarly recognizes that:

“The means of testing the seriousness of a given

candidacy may be open to debate; the fundamental

importance of ballots of reasonable size limited to

serious candidates with some prospects of public

Support is not. Rational results within the framework

of our system are not likely to be reached if the ballot

for a single office must list a dozen or more aspirants

who are relatively unknown or have no prospects of

success.” Id. at 715—716, 94 S.Ct. at 1319.

Michigan’s legislature, under this duty to protect the

political process from frivolous candidacies and faced

with the prospect of the ballot and election machinery

being overcrowded and overtaxed by parties qualifying

under a petition requirement, has made a legislative

determination that a new standard must be established

which more accurately gauges ‘“‘new”’ party support. Mr.

Apol testified that he apprised the legislature by memo-

randum after the 1972 election, and advised an ad hoc

committee in 1976 of the potential necessity of resort to

the cumbersome and tedious manual method of paper

ballots on a large scale should more than nine parties

qualify with the attendant risk of confusing and discour-

aging voters and increasing voter “‘falloff.’’2 In seeking to

avoid these serious problems, the legislature sought to

further the state’s compelling interest in keeping the ballot

within limits understandable to the voter and preventing

the clogging of its election machinery.

Plaintiffs contend that the legislature has selected nine

2. “Falloff’ is the term generally used to describe voting patterns

which reflect a smaller total vote being cast for offices or candidates

listed further down on the ballot.

35a

parties as an arbitrary maximum ballot limitation, and

adopted the .3% primary vote requirement as an arbitrary

and unreasonable measure of a “modicum of support.” It

suffices in response to say that the number “nine” neither

appears on the face of Act 94, nor is an implicit limitation.

Although the legislature was properly concerned with the

possibility of the ballot exceeding the capacity of available

voting machines, it did nor foreclose participation beyond

that capacity. Thus, Act 94 provides real, not merely

theoretical, access to the ballot, and if new parties dem-

onstrate the requisite modicum of support, the state will

accept the attendant burden, expense and disadvantage of

paper ballots or the modification of its voting procedures

to accommodate them. It is important to recognize that

all state efforts in this regard are by definition designed

to restrict candidate and party access. Storer, supra, notes:

‘As we indicated in Rosario, the Constitution does

not require the State to choose ineffectual means to

achieve its aims. To conclude otherwise might sacrifice

the political stability of the State, with profound

consequences for the entire citizenry, merely in the

interest of particular candidates and their supporters

having instantaneous access to the ballot.” 415 U.S.

at 736, 94 S.Ct. at 1282. (Emphasis supplied.)

It is clear, however, that'a state may also run afoul of

the Constitution by selecting too effective a means of

limiting ballot access. This entails an inquiry into the

burden imposed on new parties by the challenged legis-

lation. In passing on the appropriate tests against which

community support can be measured without unreason-

ably burdening the First or Fourteenth Amendments, the

Supreme Court’s general guideline has been that ‘“admit-

tedly vital interests are sufficiently implicated to insist

that political parties appearing on the general ballot

demonstrate a significant, measurable quantum of com-

munity support.” American Party of Texas, supra, 415

U.S. at 782, 94 S.Ct. at 1307. The specific parameters

ad

36a

established by recent decisions indicate that although 15%

(and perhaps 7%) is too burdensome on its face, petition

requirements of between 1% and 5%, Standing alone,

comport with reasonableness as preconditions to ballot

placement. Storer, supra, 415 U.S. at 739n, 94 S.Ct. 1274.

See Jenness v. Fortson, supra (5% of those eligible to vote

for office sought); Auerbach v. Mandel, 409 U.S. 808, 93

S.Ct. 55, 34 L.Ed.2d (1972), (3%); Wood v. Putterman, 316

F.Supp. 646 (D.Md.1970), (three judge court), aff'd.

mem., 400 U.S. 859, 91 S.Ct. 104, 27 L.Ed.2d 99 (1970),

(3% of total number of registered voters entitled to vote

for office sought); Beller v. Kirk, 328 F.Supp. 485

(S.D.Fla.1970), (three judge court), aff'd. mem. sub nom.

Beller v. Askew, 403 U.S. 925, 91 S.Ct. 2248, 29 L.Ed.2d

705 (1971), (3% of the registered electors in the state);

Socialist Labor Party vy. Rhodes, 318 F Supp. 1262

(S.D.Ohio 1970), (three judge court) moot on appeal sub

nom., Socialist Labor Party v. Gilligan, 406 U.S. 583, 585,

92 S.Ct. 1716, 32 L.Ed.2d 317 (1972), (7% of the total

vote for governor struck down). Storer, supra held that

California’s requirement of 5% of the entire vote cast in

the preceding general election was not excessive in and of

itself, but remanded for further proceedings to determine

whether, in effect, a higher percentage was required by

the disqualification of primary voters from the pool of

those eligible to sign petitions. Although the above noted

decisions deal only with percentage requirements for

petitions, the underlying concept sanctions the determi-

nation of a prerequisite level of support not limited to any

particular method of measurement.

Storer, supra, emphasizes that at the heart of the matter

is the ultimate question whether a ‘reasonably diligent”’

party or candidate can be expected to satisfy the require-

ment. 415 U.S. at 724, 94 S.Ct. 1274. American Party of

Texas, supra, citing Jenness, supra, observes that the

burden:

“may not be so excessive or impractical as to be in

reality a mere device to always, or almost always,

37a

exclude parties with significant support from the

ballot. The Constitution requires that access to the

electorate be real, not ‘merely theoretical.’ 415 U.S.

at 783, 94 §.Ct. at 1307.

The validity of regulations which burden voter rights

and ballot access is further governed by the principle that:

“If there are other, reasonable ways to achieve those

goals with a lesser burden on constitutionally pro-

tected activity, a State may not choose the way of

greater interference. If it acts at all, it must choose

‘less drastic means.’ (Citations omitted) Dunn vy.

Blumstein, supra, 405 U.S. at 343, 92 S.Ct. at 1003.

Applied to Act 94, these standards require an analysis of

the percentage of support demanded by the state’s pro-

visions, the practicability of compliance, and whether

effective “less drastic” alternatives are available.

Although precise measurement is not possible at this

time, the parties generally agree and the testimony sup-

ports that approximately 4,500 to 5,000 votes will be

necessary to meet the .3% primary performance require-

ment. That figure constitutes only slightly more than one

quarter of the number of petition signatures required,

which requirement plaintiffs concede is reasonable. In-

deed, plaintiff Ronald Glotta, State Chairman of the

Communist Labor Party, testified that his party has

Support in excess of 4,500 votes in the 9th Congressional

District alone. Plaintiffs object, however, that the pool of

available primary votes is limited because voters go to

primaries to cast major party candidacy votes. In the

context of determining whether a certain percentage of

support was unreasonable where the eligible pool was

reduced by the actual disqualification of primary voters,

American Party of Texas, supra, noted:

[I]t is not apparent to us why the new or smaller

Party seeking voter support should be entitled to get

Signatures of those ... have already demonstrated

their preference for other candidates for the same

38a

office the petitioning party seeks to fill.’ 415 U.S. at

785, 94 S.Ct. at 1308.

Michigan’s statutory scheme limits voters to the same

exclusive choice, but, significantly, before they have cast

a “disqualifying” ballot. Plaintiffs’ contention that an

impermissible barrier in effect arises from the nature of

the primary itself (rather than from any specific percentage

level of required performance) is without merit for a

second reason. In support, plaintiffs offered the testimony

of Dr. Warren and Dr. Miller to the effect that the voters

who traditionally attend primaries are the strongest major

party adherents and highly unlikely to surrender their

partisan candidate votes to merely support the addition

of a new party to the ballot. Both plaintiffs’ experts,

however, admitted having no familiarity with a procedure

such as required by Act 94 or with any studies dealing

with a primary of this type. It is implicit that the require-

ments of Act 94 necessitate that ‘“‘new’’ parties undertake

the burden of marshalling their own support including,

among others, those who would not otherwise attend the

primary.

The mere fact that significant effort is called for in

order to organize plaintiffs’ supporters and get out the

vote does not automatically dictate a decision that the

Statute imposes an insurmountable obstacle depriving

them of all but theoretical access to the ballot. “Hard

work and sacrifice by dedicated volunteers are the life-

blood of any political organization.” American Party of

Texas, supra 415 U.S. at 787, 94 S.Ct. at 1309. The statute

at issue in American Party of Texas required new political

parties to demonstrate support from that portion of the

electorate not committed to the candidates of the estab-

lished parties. The Court there upheld a Statutory petition

scheme which required, inter alia, in addition to a 1%

signature requirement that such signatures be notarized,

a 55-day limit on the circulation of petitions, and dis-

qualification of those signers who voted in the primary,

thus indicating support for other candidates or parties.

The court, in upholding the statute, noted:

39a

“The District Court recognized that any fixed

percentage requirement is necessarily arbitrary, but

we agree with it that the required measure of sup-

port—1% of the vote for governor at the last general

election and in this instance 22,000 Signatures—falls

within the outer boundaries of support the State may

require before according political parties ballot po-

sition.” (Citations omitted) 415 U.S. at 783, 94 S.Ct.

at 1307.

Similarly, the Supreme Court reasoned in Storer, supra,

that gathering 325,000 signatures (5%) in 24 days could

be performed by 1,000 canvassers if each gathered four-

teen signers a day. While standing alone this was a

substantial requirement, the court found it to be a per-

missible burden to place upon an independent presidential

candidate. 415 U.S. at 740, 94 S.Ct. at 1274.

Although the limited time between passage of this Act

and the August primary presents additional problems to

be discussed, infra, it is relevant that plaintiff Ronald

Glotta’s testimony indicated that the plaintiff Communist

Labor Party, had it been aware a primary requirement

would be imposed, would have conducted voter solicita-

tion in conjunction with gathering petitions and incor-

porated notice of the primary into its literature. This

compatability of efforts to organize voter support and the

traditional canvassing for petition signatures further re-

duces the impact of the burden new parties must bear in

complying with Act 94. If plaintiffs’ petition signatures

reflect more than merely nominal Support, the initial

contact that matures into a petition signature is an appro-

priate vehicle for attempting to channel that support

toward the vote required at the primary election. The

burden Act 94 imposes toward this end is simply one of

publicizing a new primary obligation to the electorate in

general and plaintiffs’ constituencies in particular. Meas-

ured against the statutes upheld in American Party of

Texas, supra, the activity necessary to thus mobilize the

new parties’ support would not require such an. over-

whelming additional expenditure of time and effort as to

40a

fall beyond the scope of Storer’s “reasonably diligent

efforts” standard.

The continuation of the petition requirement is an

integral part of the new Statutory framework Michigan

has designed to govern new party access to the ballot. It

is not duplicative of the measurement obtained by the

primary requirement and constitutes the initial phase of

plaintiffs’ demonstration that at least a modicum of

community support exists. As in American Party of Texas,

supra, Michigan has divided the means of demonstrating

Support into two procedures, a preliminary showing of

petition support supplemented by a smaller, more precise

measure of actual voter support. Furthermore, no exces-

sive incidental regulations significantly increase the bur-

den of the procedures in practice. Notably, no registered

voters are excluded from signing a petition or voting for

a new party in the primary on the basis of prior or present

party affiliation; a two-year period preceding the primary

is allowed to gather the signatures, the deadline for filing

petitions is three months before the primary and the

Signatures submitted must have been obtained within six

months of filing. M.C.L.A. § 168.685(1). The geographical

diversity required is limited to securing a minimum of 100

signatures from any nine of the state’s nineteen congres-

sional districts, while up to 35% of the petition require-

ment and all of the primary vote may come from a single

district. M.C.L.A.§ 168.685. Compare American Party of

Texas, supra (55 day limitation on circulating petitions

permissible, period commencing after the primary, and

primary voters disqualified from signing petitions).

This court cannot conclude as a matter of law that the

current Michigan requirements are any more burdensome

than those approved by the Supreme Court in other

related cases. Having decided then that Act 94 imposes a

reasonable burden dictated by a compelling state interest,

the question still remains as to whether the state might

have achieved its goals through “‘less drastic” means. As

discussed earlier, Michigan’s experience with the petition

requirement has demonstrated that the petition method

4la

alone is an imprecise tool that does not satisfactorily

forecast voter support of new parties. The “‘less drastic”

alternatives which plaintiffs suggest possess the same

deficiency in that they retain petition signatures as the

basic index. (Plaintiff Hudler’s Reply Brief, at page Sn).

Neither increasing the number required, shortening the

circulation period, nor similar devices would necessarily

cure the inherent defect of petitions. The legislature’s use

of the primary election machinery as an aid to ascertaining

“new” party support reflects an attempt to design a

procedure for measuring real community support that

improves upon the shortcomings of the petition method

without abandoning it altogether.

Although to the court’s knowledge no other state

currently uses this same means to gauge support, no

constitutional mandate or decision limits state action to

the use of the petition method alone. Lubin v. Panish,

supra, notes that petitions ‘for example” may be used to

measure voter support for new parties. 415 U.S. at 718,

94 S.Ct. 1315. Furthermore, the method chosen may not

“always be a completely precise or satisfactory barometer

of actual community support for a political party, but the

Constitution has never required the States to do the

impossible.” American Party of Texas, supra, 415 U.S. at

786-787, 94 S.Ct. at 1309. Absent some showing that an

equally effective, less drastic alternative exists, the legis-

lature’s decision to fundamentally change the nature of

the laws regulating ballot qualifications is subject only to

the guidelines of constitutional reasonableness considered,

supra.

II.

Plaintiffs’ equal protection argument also stems from

their having to give up their right to vote for a major

party candidate at the primary election and, instead,

indicate support for a party which might not otherwise be

on the ballot at all. Plaintiffs argue that while major party

voters may cast their primary ballots for any one party’s

42a

candidates, plaintiffs’ voters risk their party’s failure to

qualify for a ballot position. The absence oi a similar risk

for major party voters, however, is the result of the major

parties having already qualified for the general ballot by

polling in excess of 1% of the votes cast for the office of

Secretary of State in the preceding election, not merely by

virtue of their being ‘‘major parties.” Plaintiff Human

Rights Party and the American Independent Party enjoy

the same privileges, having also exceeded the 1% figure. —

“So long as the larger parties must demonstrdie

major support among the electorate at the last ejec-

tion, whereas the small parties need not, the latter,

without being invidiously treated, may be required to

establish their position in some other manner.” 415

U.S. at 783, 94 S.Ct. at 1307.

Lastly, Act 94 is also challenged here on the basis of a

discriminatory effect on new parties with only a local base

of support. Where, for example, a new party enjoys a

strong local constituency and wishes only to run a can-

didate in one district, the primary performance require-

ment may potentially demand a showing of support equal

to the amount of votes necessary to actually elect such

candidate. Collaterally, plaintiffs assert that the voter who

supports only a local candidate of a ‘“tnew” party is

foreclosed by the requirements of Act 94 from Casting a

ballot on state-wide offices for which the “new” party he

supports fields no candidates. Plaintiffs’ arguments are

misdirected, however. Act 94 provides for the qualification

of new political parties for the State of Michigan, not a

particular county or district. Once a party satisfies those

requirements, it may run a full slate of candidates eligible

for every office in the state. The fact that a party wishes

to call itself ‘‘local’’ or to run less than a full slate of

candidates does not constitutionally obligate the state to

provide a lower standard of ballot access for it. In Storer,

supra, the court states:

“A new party organization contemplates a state-

43a

wide, Ongoing organization with distinctive political

character. Its goal is typically to gain control of the

machinery of state governmeni by electing its candi-

dates to public office. From the standpoint of poten-

tial supporter, affiliation with the new party would

mean giving up his ties with another party or sacri-

ficing his independent status, even though his possible

interest in the new party centers around a particular

candidate for a particular office.” 415 U.S. at 745, 94

S.Ct. at 1286.

Furthermore, plaintiffs’ argument would apply with equal

force to the petition requirement since it too requires

signatures in excess of the vote necessary to elect to many

individual offices in select districts. This alleged equal

protection violation which plaintiffs see in Act 94 is but

another aspect of the different route to the ballot which

Jenness, supra, recognizes may be afforded new parties

seeking ballot status without violating the Fourteenth

Amendment.

We find that Act 94 serves compelling state interests in

avoiding voter confusion and the overcrowding and clog-

ging of its election machinery, as well as helping to insure

that election winners are the choice of a majority of its

voters. In addition, the provisions of Act 94 impose no

undue burden on new parties seeking ballot status and

can be satisfied by reasonably diligent efforts. The statu-

tory scheme neither invidiously discriminates against new

parties and their supporters nor impermissibly burdens

the right of franchise arid is reasonably enacted in pursuit

of vital state objectives that cannot be served equally well

in significantly less burdensome ways.

III.

One question remains. Plaintiffs urge that even if Act

94 is otherwise constitutional, its late April, 1976, effective

date comes so close to the August 3, 1976 primary as to

have deprived plaintiffs of due process by giving them so

little time to marshal their supporters, publicize the ne-

44a

cessity of primary voting and depriving them of the

opportunity they would have had for proselytizing while

they were getting their petitions filled earlier in the year.

It is beyond question that legislation may achieve

constitutionally valid goals but infringe the Fourteenth

Amendment by doing so in an unconstitutional manner.

In the context of the statute challenged at bar, this

principle calls for an inquiry into whether marshalling the

required support in the time allotted imposed a constitu-

tionally unreasonable obstacle to compliance.

The passage of Act 94 late in April caught plaintiffs at

a particularly prejudicial and inopportune time to begin

attempting to comply with the new requirements. Their

petition drives were either completed or nearly completed

and the form of petition which had been used, pursuant

to former M.C.L.A. § 168.685, indicated to signers that

their signatures constituted the only action necessary to

place the party on the ballot. Further, the opportunity for

soliciting petition signatures at the same time was ren-

dered impossible since petition gathering had all but

drawn to a close when plaintiffs were first apprised of the

primary performance requirement. In tandem then, these

problems presented plaintiffs with an obligation substan-

tially more difficult to satisfy than that which new parties

will face in the future under Act 94 and deprived them of

due process of law.

In a different vein, but contributing to the deprivation

of due process, is the legislature’s failure to take earlier

action although fully apprised of the problem. Defendant

director of elections Apol testified that he had advised the

legislature after the 1972 election and again in the fall of

1975 that overcrowding problems were likely to arise in

the next election. Apol testified before an ad hoc legislative

committee involved with the proposed legislation in Jan-

uary or February of 1976, and the legislature was aware

of the number of parties soliciting petition signatures and

the potential consequences as to the 1976 election.

Depriving plaintiffs of adequate time and notice saddled

them with an additional burden beyond that considered

45a

in the court’s earlier assessment of the likelihood of

compliance if reasonably diligent efforts are made. The

Short time limits, extra expense and duplicative effort

required to regenerate the support of plaintiffs’ consti-

tuencies falls outside Storer’s “reasonably diligent efforts”

standard and imposes an unnecessarily prejudicial burden

on the plaintiff new parties seeking 1976 ballot status.

Accordingly, this court reaches the conclusion that Act

94 is a proper exercise of legislative discretion and does

not offend the Constitution except as to its application to

the general election for November, 1976. Insofar as the

November, 1976 general election is concerned, the de-

fendants are hereby directed to take such steps as are

necessary to place on the November ballot all parties who

would have been eligible based upon compliance with the

pre-existing petition requirement.

A Judgment in conformity with this opinion shall be

Prepared by the plaintiffs forthwith and submitted to the

defendants for their approval. Such judgment should be

presented to the court for signature at the earliest possible

date, since, in an election matter of this nature, time is of

the essence to all parties.

ADDENDUM

Subsequent to circulation for approval of what has now

become the majority opinion, Judge Feikens filed his

dissent. It is felt that the following is relevant to a clearer

understanding of the majority opinion in light of the

rationale of the dissent.

To begin with, the dissent places considerable emphasis

on what is termed the “‘motives of the legislature.’ There

are two problems with this. First, there is no legislative

history as such in connection with Michigan legislation,

and the only testimony in the record as to so-called

motives is that supplied by the State Elections Director

who is neither a member of the legislature nor employed

by the legislative branch of government.

Second, and mcre importantly, there is no need to

46a

ascertain legislative intent in this case. This is not a matter

of statutory construction. The intent and meaning of Act

94 is clear to everyone. It is only its effect that is at issue.

“It is a familiar principle of constitutional law that

this Court will not strike down an otherwise consti-

tutional statute on the basis of an alleged illicit

legislative motive.’ United States v. O’Brien, 391 U.S.

367, 383, 88 S.Ct. 1673, 1682, 20 L.Ed.2d 672 (1967)

O’Brien also quotes from McCray v. United States, t95

U.S. 27, 56, 24 S.Ct. 769, 49 L.Ed. 78 (1904):

“The decisions of this court from the beginning

lend no support whatever to the assumption that the

judiciary may restrain the exercise of lawful power

on the assumption that a wrongful purpose or motive

has caused the power to be exerted.”

The O’Brien court then goes on to state:

‘Inquiries into congressional motives or purposes

are a hazardous matter. When the issue is simply

interpretation of legislation, the Court will look to

statements as to the purpose of the legislation .

It is entirely a different matter when we are asked to

void a statute that is, under well-settled criteria,

constitutional on its face ....” Jd., 391 US. at 383,

384, 88 S.Ct. at 1682.

O'Brien is also relevant with regard to what it has to say

about Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125,

5 L.Ed.2d 110 (1960), cited in the dissenting opinion in

this case.

“O’Brien’s position, and to some extent that of the

court below, rest upon a misunderstanding of Gros-

jean v. American Press Co., 297 U.S. 233 [56 S.Ct.

444, 80 L.Ed. 660] (1936) and Gomillion v. Lightfoot,

364 U.S. 339 [81 S.Ct. 125, 5 L.Ed.2d 110 (1960).

47a

These cases stand, not for the proposition that leg-

islative motive is a proper basis for declaring a statute

unconstitutional, but that the inevitable effect of a

Statute on its face may render it unconstitutional.”

Id., 391 U.S. at 384, 88 S.Ct. at 1683.

This discussion of legislative intent is not intended to

imply that taking the State Elections Director’s testimony

in its entirety indicates any improper legislative motive.

The legislative consideration was generated by a concern

that more than nine parties on the ballot would Cause

voter confusion and election chaos. Notwithstanding that

fact, the legislature did not pass legislation which abso-

lutely limited the ballot to any arbitrary number. Legis-

lators deal with problems in practical terms, and even if

a consideration of the legislative history were proper in

this case, one could not expect to find the legislature

discussing this matter in terms of “compelling state inter-

ests’’ or other judicially coined phrases.

It is also suggested in the dissent that Act 94 must fail

because it is not the least ‘drastic means” available to

meet the “‘vital governmental interest” which is viewed in

the dissent as finding a “process [which] more accurately

measures the prospects of minority parties for success in

the general election.”

It would thus appear that the majority and the dissent

do not see the “‘vital governmental interest” or the ‘“‘com-

pelling state interest” in the same terms. In the view of

the majority, the compelling state interest is the protection

of the election process, i.e., avoiding voter confusion,

preventing the clogging of the election machinery, and

assuring that the winner is the choice of the majority or

at least a strong plurality. Bullock v. C arter, 405 U.S. 134,

145, 92 S.Ct. 849, 31 L.Ed.2d 92 (1971). In order to

protect the election process, the state may, if it deems

necessary, look to means which limit access to the ballot

by new parties. One legitimate way of limiting such access

would be to find out which parties had the least support,

and these would be the ones whose ballot access would be

limited. There is no doubt that if Act 94 serves its intended

48a

legislative purpose some parties will at some time be kept

off the ballot. As pointed out earlier, the state is not

required to choose ineffectual means to accomplish its

legitimate purposes. If, in fact and law, Act 94 has a

defect, it would not be thai it is a hurdle, but that it is a

barrier.

It is impossible for this court or even the legislature to

Say in advance what the least drastic effective means of

dealing with this problem would be. There is no one

solution, and what works or doesn’t work will always be

a hindsight conclusion. The role of the court is not to tell

the legislature how to do it, but only in a proper case to

indicate whether the method actually chosen offends the

Constitution.

FEIKENS, District Judge (dissenting).

I respectfully dissent from the majority decision holding

that Act 94 is not constitutionally infirm. I concur with

the majority decision that Act 94 as applied to the 1976

general election is violative of plaintiffs’ due process

rights. I would hold that Act 94 is constitutionally invalid

for these reasons:

According to the testimony of Bernard Apol, Michi-

gan’s Director of Elections and a participant in the

drafting of Public Act 94, the new law was adopted

because it became evident that more than nine political

parties would qualify for ballot positions in the November

1976 general election under existing election laws. Mich-

igan makes extensive use of voting machines of a type

that cannot accommodate more than nine parties so long

as the option of straight party ticket voting is provided.

Since the straight party ticket option is statutorily man-

dated, the state would have to employ punch cards or

paper ballots in the event that more than nine parties

qualified for ballot positions. According to Apol, many

legislators believed that Act 94 would restrict the number

of qualifying parties to less than nine; Apol stated that

the Act was adopted for the obvious purpose of keeping

minor parties off the ballot.

49a

In addition to the pre-existing petition requirement, Act

94 requires that:

To qualify to have its name, party vignette, and

candidates appear on the general election ballot a

party whose party name only appears on the primary

ballot shall receive a vote total of more than 3/10 of

1% of the total number of voters appearing at that

primary election as shown by the poll books.

M.C.L.A. § 168.560b(4) (Supp. 1976).

Few of the voters appearing at the primary election are

likely to vote to place a new party on the general election

ballot, however, for the Act also provides:

A voter shall be entitled to vote for candidates of

| political party only, or to indicate a desire that |

party and its candidates appear on the general elec-

tion ballot.

M.C.L.A. § 168.560b(3) (emphasis added).

According to the testimony of Dr. Donald Warren, an

expert in political sociology, the mutually exclusive choice

presented to primary voters will have the effect—given

the traditional role of a primary—of making the voters

more likely to choose a candidate of a major party than

to vote to place a new party on the ballot. The pool of

potential new party supporters is thus likely to be a

relatively small portion of the primary turnout. For this

and other reasons plaintiffs challenge Act 94 as an unduly

burdensome restriction on their access to the ballot.

While research does not disclose that an electoral re-

striction of the kind imposed by Public Act 94 has ever

before been judicially tested, the general principles of law

that should govern the court’s decision are clear. As the

Supreme Court recently stated:

In several situations concerning the electoral process,

the principle has been developed that restrictions on

access to the electoral process must survive exacting

50a

scrutiny. The restriction can be sustained Only if it

furthers a ‘‘vital’’ government interest, American

Party of Texas v. White, 415 U.S. 767, 780-781 [94

S.Ct. 1296, 1305-1306, 39 L.Ed.2d 744] (1974), that

is ‘“‘achieved by a means that does not unfairly or

unnecessarily burden either a minority party’s or an

individual candidate’s equally important interest in

the continued availability of political opportunity.”

Lublin v. Panish, 415 U.S. 709, 716 [94 S.Ct. 1315,

1320, 39 L.Ed. 702] (1974). See American Party of

Texas v. White, supra [415 U.S.] at 780 [94 S.Ct. 1296

at 1305] (1974); Storer v. Brown, 415 U.S. 724, 729-

730 [94 S.Ct. 1274, 1278-1279, 39 L.Ed.2d 714] (1974).

Buckley v. Valeo (1976), 424 U.S. 1, at 92-94, 96 S.Ct.

612, at 670, 46 L.Ed.2d 659.

Under the strict scrutiny standard of review that must

be applied to statutes restricting access to the ballot, the

State has the burden of establishing the necessity of the

restriction. Bullock v. Carter, 405 U.S. 134, 147, 92 S.Ct.

849, 858, 31 L.Ed.2d 92 (1972) (“‘there must be a showing

of necessity”). (emphasis supplied). As stated in Dunn v.

Blumstein, 405 U.S. 330, 343, 92 S.Ct. 995, 1003, 31

L.Ed.2d 274 (1972):

[T]he State cannot choose means that unnecessarily

burden or restrict constitutionally protected activity.

Statutes affecting constitutional rights must be drawn

with ‘precision,’ NAACP vy. Button, 371 U-S. 415,

438 [83 S.Ct. 328, 340, 9 L.Ed.2d 405] (1963); United

States v. Robel, 389 U.S. 258, 265 [88 S.Ct. 419, 424,

19 L.Ed.2d 508] (1967), and must be ““tailored”’ to

serve their legitimate objectives. Shapiro v. Thompson,

supra [394 U.S. 618], at 631 [89 S.Ct. 1332, at 1329,

22 L.Ed.2d 600 ]. And if there are other, reasonable

ways to achieve those goals with a lesser burden on

constitutionally protected activity, a State may not

choose the way of greater interference. If it acts at

all, it must choose “‘less drastic means.” Shelton v.

Tucker, 364 U.S. 479, 488 [81 S.Ct. 247, 252, 5

L.Ed.2d 231] (1960).

Sla

The issues for decision are, first, whether the state has

shown a vital governmental interest that is served by Act

94, and second, whether the state has shown that Act 94

is necessary to serve that interest in the sense that no less

drastic means are available. As to the vital governmental

interest, the state asserts that its purpose was to require

new and minority political parties seeking ballot status to

demonstrate a modicum of community support. While

this is, of course, a well-established and legitimate function

of state election laws, it smacks somewhat of post hoc

rationalization in view of Apol’s explicit testimony as to

the immediate evil that Act 94 was designed to remedy,

namely, the prospect that more parties would qualify than

would fit on the voting machines. The state recognizes

that the petition method is used in over 30 states to

measure community support, that Michigan employed the

petition method prior to Act 94, and, indeed, that Mich-

igan has retained the petition requirement even after Act

94. Yet the assertion is made that ‘‘experience over time

has revealed that at least in Michigan the petition method

is an extremely imprecise method for measuring commu-

nity support.” Post-Trial Brief of Defendants, dated July

8, 1976, at 7. Assuming that ‘“‘community support” means

potential votes in the general election rather than support

for giving the party a place on the ballot, there is indeed

evidence in this record for the state’s assertion. However,

these is no evidence that this was a concern of the

legislature in adopting Act 94, or even that the inefficacy

of the petition method as a measure of community support

was brought to their attention. If this had been one of

their concerns, it is difficult to imagine a reason for

retaining the petition method in addition to the primary

method. If, as the state asserts, the petition method is

“extremely imprecise,” its continued use would seem to

lack even a rational basis.

The state contends, nonetheless, that the legislature’s

actual purpose is irrelevant, stating:

Although the Michigan legislature may have en-

52a

acted Act 94 in response to the very real possibility

that more than nine political parties would appear

on the November 1976 general election ballot thereby

preventing the use of voting machines, the motivation

of the legislature cannot be utilized in determing the

constitutionality of Act 94.

Post-Trial Brief of Defendants at 9. (emphasis added).

I have difficulty with the proposition that the avowed

purpose of the legislature may be ignored in the judicial

review of its enactments. Where important constitutional

rights are at stake, especially the rights of political parties

whose interest in obtaining access to the ballot is in direct

conflict with the interest of the major party legislators in

remaining in office, it seems appropriate that the motives

of the legislature as well as the effects of the legislation

should be strictly scrutinized.*

Even assuming, however, that the “vital governmental

interest” behind Act 94 is the need to supplement the

*The Supreme Court has frequently considered the motives of the

legislature in reviewing legislation for constitutionality. In Gomillion

v. Lightfoot, 364 U.S. 339, 347-48, 81 S.Ct. 125, 130, 5 L.Ed.2d 110

(1960), the Court stated:

... “Acts generally lawful may become unlawful when done to

accomplish an unlawful end, United States vy. Reading Co., 226

U.S. 324, 357 [33 §.Ct. 90, 57 L.Ed. 243], and a constitutional

power cannot be used by way of condition to attain an uncon-

stitutional result.” Western Union Telegraph Co. v. Foster, 247

U.S. 105, 114 [38 S.Ct. 438, 439, 62 L.Ed. 1006]

Similarly, in Griffin v. County School Board, 377 U.S. 218, 231, 84

S.Ct. 1226, 1233, 12 L.Ed.2d 256 (1964), the Court stated:

Whatever nonracial grounds might support a State’s allowing a

county to abandon public schools, the object must be a constitu-

tional one, and grounds of race and Opposition to desegregation

do not qualify as constitutional. (emphasis added).

53a

inadequate petition method with a process that more

accurately measures the prospects of minority parties for

success in the general election, the state has failed to carry

its burden of showing that the primary method is neces-

sary. Indeed, on this record it is not even established that

the primary method, either alone or in conjunction with

the petition method, will be any more effective than the

petition method in measuring ‘community support.”

When asked whether Act 94 is a fair test of new party

support, Dr. Warren answered in the negative, stating

that primaries do not indicate party strength. Dr. Warren

Miller, a Professor of Political Science at the University

of Michigan with particular expertise in voting behavior,

Stated that the primary would have no predictive value as

to the party’s showing in the general election. In fact, Dr.

Miller went so far as to state that there is no valid way of

using a primary to demonstrate a nodicum of community

Support. It is true, as the majority points out, that no

procedure similar to that of Act 94 has been subjected to

scholarly analysis. This fact certainly reflects upon the

weight to which the experts’ opinions are entitled. How-

ever, persons who have devoted their professional careers

to the study of elections and voting behavior have valuable

expertise that may shed light on the effect that a new

procedure will have in practice, even if it had never before

been tried. More important, the state has produced no

evidence that the primary will achieve its purported ends.

Even if we were to discount the expert testimony in its

entirety, the state has failed to discharge its burden of

showing that the primary requirement imposed by Act 94

is even effective, not to mention necessary.

Looking, on the other hand, to the true purpose of Act

94—namely, to preserve the use of the state’s voting

machines—it is clear that less drastic means are available.

[t is the testimony of Mr. Apol that the voting machines’

capacity is limited to nine parties only if the straight party

ticket option is provided. The legislature might, therefore,

have achieved its purpose simply by deleting the statutory

requirement for the straight party ticket option. While the

54a

voters of the state may have some slight interest in the

convenience of voting for all the candidates of one party

by pulling a single lever, this interest is de minimus as

weighed against the rights of plaintiffs in access to the

ballot. Moreover, the testimony of Dr. Miller suggests

that more than half of the present Michigan electorate is

independent, i.e., does not identify with either major

party. This fact tends to minimize even further the interest

of the state in the straight party ticket option—it may be

assumed that the trend toward independent voting means

an increase in ticket splitting. Finally, the elimination of

the straight party ticket option would further the purpose

of encouraging the electorate to exercise more discrimi-

nation in their use of the franchise.

History reveals numerous instances in which legislative

restrictions have been enacted to curtail the right to vote

for candidates or parties. Often these restrictions have

been directed at political parties or candidates who ad-

vocate unpopular positions or indeed simply exercise the

right to dissent. Frequently, reasons for such actions are

given which seem superficially sound.

It is because of this that our rules of law place a heavy

burden on the state to justify its actions when it legislates

restriction on voting rights. This burden should never be

shifted by the judiciary.

For these reasons, I find that the state has failed to

carry its burden of justifying Act 94.

55a

MEMORANDUM DECISIONS

97 S.Ct. 1541 (1977)

Stephanie ALLEN et al.,

Appellants

v. No. 76-1038

Richard AUSTIN et al.

Defendants

Appeal from the United States District Court for the

Eastern District of Michigan.

Facts and opinion, Hudler v. Austin, D.C., 419 F.Supp.

1002.

March 21, 1977. Judgment affirmed.

Mr. Justice STEWART, Mr. Justice BLACKMUN and

Mr. Justice POWELL would postpone jurisdiction to a

hearing of the case on the merits.

S6a