Petition — Celebrezze v. Anderson

re ee ee

FILED

80-189 AUG - 71980

Sey MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

October Term, 1980

<>

ANTHONY J. CELEBREZZE, JR., in his official capacity as

Secretary of State of the State of Ohio,

Petitioner,

eas

JOHN B. ANDERSON, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

WILLIAM J. BROWN

ATTORNEY GENERAL OF OHIO

JOEL SANFORD TAYLOR

Deputy Chief Counsel

ADRIENNE C. LALAK

Assistant Attorney General

State Office Tower

30 East Broad Street

Columbus, Ohio 43215

(614) 466-8486

Attorneys for Petitioner

August , 1980

IN THE

Supreme Court of the United States

October Term, 1980

No.

>

ANTHONY J. CELEBREZZE, JR., in his official capacity as

Secretary of State of the State of Ohio,

Petitioner,

—V—

JOHN B. ANDERSON, et al.,

Respondents.

—_>—

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

The petitioner Anthony J. Celebrezze, Jr., Secretary of State

of the State of Ohio, respectfully prays that a writ of certiorari

issue to review the judgment of the United States District Court

for the Southern District of Ohio, Eastern Division, made and

entered in the above-entitled cause on July 18, 1980, which judg-

ment has been appealed to the Court of Appeals for the Sixth

Circuit. Judgment has yet to be rendered therein.

QUESTIONS PRESENTED

1. Whether a state statute establishing a March 20, 1980, filing

deadline for independent candidates for election to the office of

President of the United States may be held to constitute a per se

severe burden upon the exercise of rights guaranteed by the First

and Fourteenth Amendments to the United States Constitution

such that it is invalid unless compelling state interests are shown.

2. Whether a state statute establishing a March 20, 1980, filing

deadline for independent candidates for election to the office of

President of the United States invidiously discriminates against

such candidates in favor of political parties, in violation of the

Equal Protection Clause of the Fourteenth Amendment to the

United States Constitution.

3. Whether a state statute establishing a March 20, 1980, filing

deadline for independent candidates for election to the office of

President of the United States is justified by the compelling state

interest of preservation of political stability and does not, there-

fore, unconstitutionally limit rights guaranteed by either the First

or the Fourteenth Amendments to the United States Constitu-

tion.

4. Whether this Court’s summary affirmance in Sweetenham

v. Gilligan, 409 U.S. 942 (1972), required the District Court to

sustain the constitutionality of Ohio Revised Code § 3513.257

against First and Fourteenth Amendment challenges.

PARTIES BELOW

Additional parties aligned with respondent John B. Ander-

son* are respondents George H. Hetrick, Leslie Laufman, and

Gerald M. Eisenstat. There are no additional petitioners.

° In this petition, ‘‘respondent”’ refers to John B. Anderson alone, and

“‘respondents”’ refers to all respondents collectively.

iii

TABLE OF CONTENTS

OPINION BELOW ..cccccscccsscccccccvccsesvccecs

FEIT EUS oh 5 echo e vecigg es ddaweedasseeessanes

CONSTITUTIONAL AND STATUTORY PROVI-

SIONS INVOLVED IN THE CASE...............

STATEMENT OF THE CASE. .....ccccscccccccccecs

REASONS FOR GRANTING THE WRIT ............

1.

This Case Presents Issues Of Imperative Public im-

portance Requiring Prompt And Conclusive Dispo-

sition By This Court Prior to Judgment In The

COME CIE aphid oo.sn.0.s chee ces nereeeune ee

. The District Court’s Determination That The State

Statute Constituted A Per Se Severe Burden Upon

The Respondents’ First Amendment Rights, Re-

quiring A Showing Of Compelling State Interests In

Justification, Is In Conflict With The Decisions Of

This Court in Storer v. Brown and Mandel v. Brad-

. The District Court’s Determination That Invidious

Discrimination In Violation Of The Equal Protec-

tion Clause Is Created By Requiring Independent

Candidates For President To File Nominating Peti-

tions On March 20, 1980, Conflicts With Several

Pocanhs OF TRE. | s vn.o-caticks staan sadanes

The District Court’s Determination That The State

Statute Did Not Serve The Compelling State In-

terest Of Preservation Of Political Stability Is In

Conflict With The Decision Of This Court In Storer

Vi AS vine 5 6303 cake rbeeeaeeeta aie teees

. The District Court’s Refusal To Enter Judgment

For The Petitioner In Accordance With This

15

21

iV

PAGE

Court’s Summary Affirmance In Sweetenham y.

Rhodes Conflicts With This Court’s Holding in

Mandel v. Bradley That Summary Affirmances Re-

ject The Specific Challenges Presented In The State-

ment of Jurisdiction Filed With This Court To Initi-

ot Cu tags iin Soa ac cays; 26

| ESS A IER ee ap ea 30

EEE RSs RSPR Stine Rene 31

REHEARSE ATES Se en 31

ae ia ik Se a eT ak oe 32

3. Bradley v. Mandel (unreported opinion) ......... 96

4. Statement of Jurisdiction (Sweetenham v. Rhodes) 109

5. Text of Constitutional and Statutory Provisions... 118

Vv

TABLE OF AUTHORITIES

Cases: PAGE

Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937) .... 28

American Party v. White, 415 U.S. 767 (1974).......... 16, 21

Babbitt v. United Farm Workers Nat’! Union, 442 U.S.

EPPO 5 6a ne 4 iedts dak bade kawamewdiecekaGhars 28

Bradley v. Mandel, No. T-76-638 (D. Md. 1976) ........ 10

Edelman v. Jordan, 415 U.S. 651 (1974) ...........006. 28

Ferguson v. Skrupa, 372 U.S. 726 (1963)... ........006. 16

Hicks v. Miranda, 422 U.S. 332 (1975)... 0... cee eee 28

Illinois State Board v. Socialist Workers’ Party, 440 U.S.

CPG SEE is Knack on 04%h ns bh ecsns awins ecb ann eaeeenn 14

Jenness v. Fortson, 403 U.S. 431 (1970). ......... 16, 18, 19, 21

Kay v. Brown, 424 F.Supp. 588 (S.D. Ohio 1976) ....... 30

Kusper v. Pontikes, 414 U.S. 51 (1973) ...........0005. 13

Mandel v. Bradley, 432 U.S. 173 (1977)..... 8,9, 10, 11, 12, 13,

15, 20, 26, 28, 29

O’Shea v. Littleton, 414 U.S. 488 (1974) .... 0... ee ee eee 28

Railway Mail Association v. Corsi, 327 U.S. 88 (1945) ... 28

Rock v. Bryant, 459 F.Supp. 64 (E.D. Ark. 1978), aff’d,

eg a ere ae 12

Rosario v. Rockefeller, 410 U.S. 752 (1973) ............ 13

Storer v. Brown, 415 U.S. 724 (1974)... .8, 9, 10, 11, 12, 15, 18,

19, 20, 21, 22, 23, 24, 25, 26, 29

Sweetenham v. Rhodes, decidec together with Socialist

Labor Party v. Rhodes, 318 F.Supp. 1262 (S.D. Ohio

1970), aff’d sub nom. Sweetenham vy. Gilligan, 409 U.S.

UTE: 3.0.0 00 cn bacnntcipeueesinees tance’ 26, 27, 28, 30

vi

PAGE

Tucker v. Salera, 424 U.S. 959 (1976), affirming Salera v.

Tucker, 399 F.Supp. 1258 (E.D. Pa. 1975)............ 10, 29

United States v. Nixon, 418 U.S. 683 (1974) ............ 5,6

United States v. United Mine Workers, 330 U.S. 258

AMEE arkinG ie SN aeNw ean Mees ees eee biee es ceear 5

Williams v. Rhodes, 393 U.S. 23 (1968) ............-. 8, 12, 13

Statutes:

ry NEED cos docccrvecccveevecusccsnsess 1

Pe icihers IN EEE oc cea cncalvsccceveccvccecees 5

Baas SNEED wave cvcrccccccccserecccsces —

eS de a 2

Pe ies MR EIEEDD ig ccccendccccwavccccccaeseas 2

StF MUI pcv.cc cece cctcccisecccccccccees 2

EG ME IEE oo sc ccc enevcccccneccccceessus 2

Tes UME co cb cacccccdsowescusveccevecs 2

Re 6

Ohio Revised Code Section 3513.04..............0000 l

Ohio Revised Code Section 3513.05 .............. 2, 16, 20, 23

Ohio Revised Code Section 3513.12 .............000 2, 16, 20

Ohio Revised Code Section 3513.257 ........ 2, 4, 8, 15, 16, 18,

19, 23, 27, 30

Ohio Revised Code Section 3517.01(A) ............0005 2, 17

Ohio Revised Code Chapter 3517 ............... 17, 18, 19, 21

Ohio Revised Code Section 3513.258..............005. 27

Vii

PAGE

United States Constitution:

Article II, Section 1, Clause 2 ....cccccccccccecees ‘2,43, 33

pS | BP Pye TEEPE REET REIL TE 1,2

Amendment XIV, Section 1.......ccccccccccccccvens 1,2, §5

eS err rer ere Tiree eT eee ee 2

PL, Fide dacs et cnee cosess Mrkvbddcen ween eas 2

ENG 6c occ bosib enw har eee et deRorersenendsedeees 28

Rules:

Rule 18, Rules of the United States Supreme Court...... 1,5

Rule 56, Federal Rules of Civil Procedure.............. 2

Rule 17.1(c), Rules of the United States Supreme Court . . 7

Rule 17.2, Rules of the United States Supreme Court .... 7

l

OPINION BELOW

The opinion of the United States District Court for the

Southern District of Ohio, Eastern Division, announced on July

17, 1980 (upon which judgment was entered on July 18, 1980),

has not yet been reported and appears in the Appendix (A.32)*.

The United States Court of Appeals for the Sixth Circuit has not

yet rendered any opinion on the judgment which is here sought to

be reviewed.

JURISDICTION

The judgment of the District Court granting summary judg-

ment in favor of the respondenis herein was entered on July 18,

1980, and a copy thereof is included in the Appendix (A.31). The

petitioner herein docketed an appeal in the Court of Appeals for

the Sixth Circuit on July 30, 1980, pursuant to its jurisdiction

under 28 U.S.C. § 1291. The Court of Appeals has not yet ren-

dered judgment.

Jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1), providing for the granting of a writ of certiorari upon

the petition of any party before the rendition of judgment by the

Court of Appeals, and Rule 18 of the Rules of this Court. This

petition was filed before judgment in accordance with 28 U.S.C.

§ 2101 (e).

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The following constitutional and statutory provisions are in-

volved in this case, with the full text being set forth in the Appen-

dix hereto:

1) Constitution of the United States, Article II, Section 1,

Clause 2

2) Constitution of the United States, Amendment I

3) Constitution of the United States, Amendment XIV,

Section |

4) Ohio Revised Code Section 3513.04 (last paragraph)

° References to ‘‘(A. _)’’ are to pages in the Appendix hereto.

2

5) Ohio Revised Code Section 3513.05

6) Ohio Revised Code Section 3513.12

7) Ohio Revised Code Section 3513.257

8) Ohio Revised Code Section 3517.01(A)

STATEMENT OF THE CASE

The petitioner requests review of a judgment entered by the

District Court in a suit initiated by the respondents on May 19,

1980, for the purpose of compelling the petitioner to place

respondent’s name on the Ohio election ballot as an independent

candidate for President of the United States. Petitioner had de-

clined to place respondent’s name on the ballot because his

nominating petitions and statement of candidacy were tendered

nearly two months after the statutory filing deadline of March

20, 1980, had passed, Ohio Revised Code § 3513.257. Respon-

dents’ suit claimed, inter alia, that this filing deadline violated

their rights under the First and Fourteenth Amendments to the

Constitution of the United States. Jurisdiction was invoked un-

der Article II, Article VI and the First, Fifth and Fourteenth

Amendments to the Constitution of the United States; 28 U.S.C.

§§ 1331, 1343(3) and 2201-02; and 42 U.S.C. § 1983.

The case was tried on a Joint Stipulation of Fact, and the briefs

and oral arguments of the parties. The District Court, finding no

material fact to be in issue, entered summary judgment under

Rule 56, Federal Rules of Civil Procedure, on July 18, 1980.

Respondents were granted injunctive and declaratory relief re-

quiring that respondent’s name appear on the Ohio ballot if his

petition signatures are verified. Petitioner appealed from this

judgment to the Court of Appeals for the Sixth Circuit on July

28, 1980, and judgment on this appeal has yet to be rendered.

Ohio Revised Code § 3513.257 provides relatively easy ballot

access to independent candidates for office. A person seeking

ballot position as an independent presidential candidate need

tender petitions bearing the signatures of only 5,000 qualified

electors. There is no geographical distribution requirement im-

posed on the signature gathering process nor is the pool of possi-

ble signers limited by any requirement that signers be disaffiliated

3

from political parties. Candidates have an unlimited time within

which to obtain signatures. The 5,000 signatures required to be

filed represent a mere .12 percent of the 4,111,873 votes cast in

Ohio in the 1976 presidential election. However, an independent

candidate for office must commit himself to run as an indepen-

dent at the same time that a partisan candidate makes up his mind

and files his nominating petitions for the primary elections. The

joint filing deadline for independent candidates and partisan can-

didates prevents a candidate from first trying one route to the

general election ballot and then, because of his lack of success,

changing his mind and trying a different route.

The leniency of Ohio’s ballot access requirements is shown by

the ease with which numerous other persons have qualified for

ballot position in Ohio as independent candidates in the past

eight years. In the gubernatorial races held in 1974 and 1978, four

independent candidates qualified for ballot position, one in 1974

and three in 1978. Independent senatorial candidates have also

succeeded in gaining ballot position; two did so in 1974, three did

so in 1976 and two filed nominating petitions appearing to bear

sufficient numbers of signatures this year. Most importantly, five

independent presidential candidates were accorded ballot posi-

tion in 1976, and another five timely filed nominating petitions in

the current year appearing to bear sufficient numbers of signa-

tures.

Respondent, currently a member of Congress representing

Illinois’ 16th Congressional District, and elected from that dis-

trict as a Republican Congressman every two years since 1960,

announced on June 8, 1979, that he would seek the Republican

nomination for President of the United States. In the period

between June 8, 1979 and April 24, 1980, the date upon which

respondent withdrew from the Republican race and announced

his intention to seek the Presidency as an independent, he

mounted a national campaign for the Republican nomination,

qualifying for the Republican primary ballot in twenty-seven of

the thirty-six states in which such primaries are held and engaging

in some activity in support of his candidacy in the remaining

fourteen states. Among those primary election states was Ohio,

in which respondent filed his petitions on March 20, 1980, and he

4

was thereafter qualified to appear on the Republican primary

ballot in this state until he withdrew from the ballot on April 24,

1980.

However, by the time of his withdrawal from the Republican

primary election race on April 24, 1980, respondent had lost all of

the nine primaries held by that date, and had been awarded only

55 delegates from the more than 500 delegates awarded to Re-

publican candidates, nearly half of the 55 coming from his home

state of Illinois. The District Court found in this regard (A.39)

that ‘‘[respondent’s] losses in each of the Republican primaries

he entered prior to April 24 indicate quite clearly [that] he did not

enjoy support from a majority of the Republican Party.’’ During

the course of this unsuccessful campaign, respondent had availa-

ble for expenditure to promote his candidacy over 6.6 million

dollars, 2.7 million dollars of which were received by his cam-

paign from federal matching funds available only to partisan

candidates.

Respondent, having decided on April 24, 1980, to withdraw

from the Republican race for the Presidency, nevertheless an-

nounced that he would remain a member of the Republican

party. However, he then set out not only to remove his name

from the ballots in those states which would hold Republican

presidential primaries in the succeeding months, but also to seek

ballot position as an independent candidate. He made this deci-

sion to switch to an independent candidacy late enough in the

primary elections campaign so that he was able to remove his

name from the Republican ballot in only five states (including

Ohio). His name remained on the Republican ballot in twelve

states and the District of Columbia.

In Ohio, respondent’s ‘‘independent’’ campaign took the

form of a petition drive, undertaken between May 10, 1980 and

May 15, 1980, during which time his coordinators, nearly half of

whom had previously served his Republican campaign in organi-

zational capacities, gathered approximately 16,000 signatures in

86 of Ohio’s 88 counties. The petitioner herein refused to accept

respondent’s petitions since they were not filed on or before

March 20, 1980, the time limit set by Ohio Revised Code

§ 3513.257.

5

REASONS FOR GRANTING THE WRIT

1. This Case Presents Issues Of Imperative Public Importance

Requiring Prompt And Conclusive Disposition By This

Court Prior To Judgment In The Court Of Appeals.

The instant case presents an issue of the utmost public impor-

tance in that its resolution may directly and significantly affect

the election, on November 4, 1980, of the next President of the

United States. As the District Court correctly recognized, Ohio

will on that day award to one candidate its slate of presidential

electors which is, in size, the sixth largest in this country. By

reason of the 25 votes it is accorded in the Electoral College, Ohio

has the potential for directly affecting the ultimate selection of

the President. In any close election, Ohio’s 25 electoral votes will

be extremely significant in determining who is selected as Presi-

dent. The outcome of the presidential election in Ohio may in

turn be affected by the presence or absence on the ballot of

respondent, a candidate with substantial support as recognized

by the District Court. Moreover, respondent is currently present-

ing similar constitutional challenges to filing deadlines in Mary-

land, Maine, Kentucky and New Mexico. Therefore, the resolu-

tion of the instant case may well irrevocably determine the out-

come of the 1980 presidential election and thus touch the life of

every citizen of the United States.

This case presents ideal circumstances for this Court to exercise

its power to review a case by writ of certiorari ‘“‘before . .

rendition of judgment” in the court of appeals, 28 U.S.C.

§ 1254(1). Peutioner is permitted to apply for a writ of certiorari

at any time before judgment is rendered by the court of appeals,

even at a time only days after the case is docketed in the court of

appeals. 28 U.S.C. § 2101(e); United States v. United Mine

Workers, 330 U.S. 258 (1947). Under such circumstances, a writ

will be granted ‘‘only upon a showing that the case is of such

imperative public importance as to justify the deviation from

normal appellate processes and to require immediate settlement

in the court,”’ Rule 18, Rules of the Supreme Court.

It is appropriate to grant the writ pursuant to Rule 18 upon a

showing of the ‘‘public importance of issues presented and ithe

need for their prompt resolution,’’ United States v. Nixon, 418

6

U.S. 683, 687 (1974). The public importance of the issue pre-

sented by this case is equal to that in United States v. Nixon. Both

cases involve issues which bear directly upon the office of Presi-

dent. In Nixon, at issue was the disclosure of materials prepared

by that office, the nature of which ultimately had enormous

impact upon the continuation in office of the President. In this

case, the presence or absence of respondent’s name upon the

Ohio ballot for President may well determine which candidate is

to receive Ohio’s votes in the Electoral College, and that in turn

may well determine who is to hold the office of President over the

next four years.

Nor can one imagine a case more in need of prompt resolution.

Should respondent’s name remain on the Ohio presidential ballot

on November 4, 1980, pursuant to the District Court’s injunc-

tion, while appellate review proceeds, the validity of the election

results could later be called into question should petitioner pre-

vail and it become apparent that the votes of Ohio’s presidential

electors were determinative in the selection of the President. If

respondent attracts the 23 to 44 percent of the vote which the

District Court found him to be receiving according to current

polls (A.39), it is obvious that his presence on the ballot in Ohio

would call into serious question the election results in this state

(and, consequently, the nation) should it later be determined that

he was improperly allowed on the ballot. There is certainly im-

perative public interest in resolving the legal issues raised by this

case in advance of the election so as to foreclose later challenges

to election results which would create uncertainty as to who has

been elected President in this time of national stress on both the

domestic and foreign scenes.

Moreover, it would not appear possible to obtain review of the

legal issues presented by this case by both the Court of Appeals

and this Court prior to that point in time in October after which it

is too late to make ballot changes (see petiiioner’s Motion to

Expedite filed herewith). It is unlikely that the losing party in the

Court of Appeals will not seek review of the matter in this Court,

and, indeed, petitioner would have an appeal as of right, 28

U.S.C. § 1254(2). It is certainly desirable that the highest court of

this nation put to rest a question bearing directly on the integrity

of the presidential selection process.

7

The central issue in this case is simple. As set forth infra, the

District Court did not correctly apply the law as announced by

this Court to its adjudication of the constitutionality of the dead-

line imposed by Ohio upon independent presidential candidates

for the filing of nominating petitions, and the District Court’s

determination is, therefore, in patent conflict with this Court’s

decisions. The instant case is thus brought well within the require-

ments for granting a writ of certiorari, Rules:17.1(c) and 17.2,

Rules of the Supreme Court. This Court’s granting of a writ of

certiorari would bring before it a fully developed controversy in

which the facts are unchallenged and where only the ultimate

legal issue is left for decision. Where, as here, the issue is so

clearly defined and its resolution is so urgently needed, the is-

suance of a writ of certiorari is not only necessary but totally

consistent with this Court’s role as the final arbiter of major

constitutional disputes.

2. The District Court’s Determination That The State Statute

Constituted A Per Se Severe Burden Upon The Respon-

dents’ First Amendment Rights, Requiring A Showing Of

Compelling State Interests In Justification, Is In Conflict

With The Decisions Of This Court In Storer v. Brown And

Mandel v. Bradley.

The District Court was called upon to determine, in the first

instance, whether the filing deadline statute here in issue consti-

tuted such a severe burden upon the First Amendment rights of

the respondents that it had to be justified by compelling state

interests. The respondents had alleged that the imposition of the

March 20, 1980, filing deadline upon respondent constituted an

abridgment of their First Amendment rights to advocate political

preferences, to associate for the purposes of such advocacy, to

run as an independent presidential candidate or as an elector

pledged thereto, and to vote for such an independent presidential

candidate or his electors.

The District Court found (A.36) that the statute did ‘‘abridge

fundamental rights of the [respondents]’’ and that the law

‘*burden[ed] these plaintiffs’ rights of expression and association

secured by the First Amendment.’’ The District Court’s flat as-

sertion that the imposition of a March 20, 1980, filing deadline

8

**substantially abridges the constitutional rights of association of

Anderson and his supporters and the fundamental right to vote

of his supporters’’ (emphasis added) (A.63) stands alone, abso-

lutely lacking any articulated factual basis for a finding of sub-

stantiality. Thus, the District Court leaped right to a considera-

tion of whether Ohio Revised Code § 3513.257 was justified by

any compelling state interest without conducting any review of

the evidence offered to show that the effect of the statute upon

First Amendment rights was negligible. For example, the District

Court made no findings concer>ing the history of independent

candidates qualifying for the Ohio ballot despite evidence in the

Joint Stipulation of Fact showing the ease with which such candi-

dates have qualified in Ohio. The District Court’s consideration

of the filing deadline as a per se severe burden upon First Amend-

ment rights is patently inconsistent with this Court’s earlier opin-

ions in Storer v. Brown, 415 U.S. 724 (1974) and Mandel v.

Bradley, 432 U.S. 173 (1977).

In Storer and Mandel, this Court set forth an analytic frame-

work for the resolution of challenges to ballot access statutes

which were based on alleged violations of rights secured to the

people under the First Amendment. The first of these cases,

Storer, considered two separate challenges to the California Elec-

tions Code. One concerned the disaffiliation requirements which

barred the independent candidacy of a person who had been

affiliated with a ‘‘qualified political party’’ within the immedi-

ately preceding year. The action was brought by two persons

seeking to stand for election as independent candidates for Con-

gress who had been affiliated with a political party within the

preceding year. This Court turned to its earlier decision in Wil-

liams v. Rhodes, 393 U.S. 23 (1968), and adopted therefrom the

standard that such a requirement, in that it ‘‘severely burdened

the right to associate for political purposes. . . had to be justi-

fied by compelling state interests.’’ Storer, 415 U.S. at 729 (em-

phasis added). Clearly, the message of this first branch of Storer

was that a ballot access restriction which resulted from the fact of

prior activity undertaken under the aegis of the First Amendment

(i.e., association with a political party) constituted a burden on

those protected activities, the severity of which was self-evident.

Therefore, it had to be justified by a compelling state interest.

9

The second branch of Storer presented the question of whether

a set of petition signature requirements, which, this Court esti-

mated, would operate to require the filing of 325,000 signatures

by an independent candidate for the Presidency, imposed an

impermissible burden upon ballot access. This Court declined to

apply in the first instance the compelling state interest test it had

set forth in the first part of the Storer opinion because the severity

of the burden imposed by the statute could not be determined

without further factual inquiry. This Court announced that, in

such cases, it was necessary to ‘‘inquire as to the nature, extent

and likely impact of the California requirements.’’ 415 U.S. at

738 (emphasis added).

Therefore, according to Storer, the simple fact that a statute

affects access to a ballot is an insufficient basis for a finding of

per se unconstitutionality in the absence of a showing of compel-

ling state interests. Second, this Court has classified ballot access

statutes into two categories: those which, like the California dis-

affiliation statute, appear to impose a severe burden, the nature

of which is self-evident from the operation of the statute; and

those which, like the California petition signature requirements,

cannot be said to impose a severe burden in the absence of an

evidentiary inquiry directed at determining how the statute

operates in fact. With respect to the latter category, the Court

prescribed the following test for measuring the severity of the

burden upon constitutional rights, 415 U.S. at 742:

Third, once the number of signatures required in the 24-day

period is ascertained, along with the total pool from which

they may be drawn, there will arise the inevitable question

for judgment: in the context of California politics, could a

reasonably diligent independent candidate be expected to

satisfy the signature requirements, or will it be only rarely

that the unaffiliated candidate will succeed in getting on the

ballot? Past experience will be a helpful, if not always unerr-

ing, guide: it will be one thing if independent candidates

have qualified with some regularity and quite a different

matter if they have not. [Emphasis added. ]

The Court applied this test to an election filing deadline in

Mandel. The plaintiff, who sought to run as an independent

10

candidate for the U.S. Senate, successfully challenged in the Dis-

trict Court a Maryland statute requiring such candidates to file

petitions bearing signatures of three percent of the registered

voters on a date 70 days in advance of the state’s primary elec-

tion, i.e., on March 8, 1976. Having found that none of the

interests asserted by the defendant state in support of its statute

were sufficiently compelling to justify the filing date, the trial

court then found that the statute imposed an unconstitutional

burden on the plaintiff’s ‘‘right to become an independent candi-

date and on the rights of the other plaintiffs to exercise their

franchise to vote’’ without any analysis directed at determining

whether a reasonably diligent candidate could have complied

with Maryland’s law. Bradley v. Mandel, No. T 76-638, at p. 15

(D. Md. 1976) (a copy of the unreported opinion is included at

A.96). The trial court held that it was bound by this Court’s

summary affirmance of a somewhat similar case. See Tucker v.

Salera, 424 U.S. 959 (1976), affirming Salera v. Tucker, 399

F.Supp. 1258 (E.D. Pa. 1975).

This Court reversed and remanded; it found that the District

Court had improperly relied on its summary disposition in

Tucker v. Salera and reaffirmed the applicability of the test it

first articulated in Storer, 432 U.S. at 177:

Because of its preoccupation with Salera, the District

Court failed to undertake an independent examination of

the merits. The appropriate inquiry was set forth in Storer v.

Brown, supra, 415 U.S., at 742:

[I]n the context of [Maryland] politics, could a reasona-

bly diligent independent candidate be expected to satisfy

the [ballot access] requirements, or will it be only rarely

that the unaffiliated candidate will succeed in getting on

the ballot? ...

This Court went on to chastise the District Court for failing to

make findings of fact concerning the difficulty of obtaining

signatures before the filing deadline, for failing to consider the

impact that other, perhaps more moderating parts of the statute

might have in alleviating any burden created by the challenged

statute, and for failing to consider the history of independent

candidates qualifying for the Maryland ballot. The Court said, in

11

this regard, that ‘‘the District Court’s assumption that the filing

deadline by itself was per se illegal . . . resulted in a failure to

apply the constitutional standards announced in Storer to the

statutory provisions here at issue.’’ 432 U.S. at 178 (footnote

omitted).

When the District Court’s decision in this case is measured

against the law established by this Court in Storer and Mandel,

the conclusion is inescapable that the District Court committed

error identical to that of the trial court in Mandel. The court

below disregarded this Court’s statement that there can be no

assumption in a filing deadline case that such a deadline is per se

severely burdensome upon constitutional rights. The District

Court’s discussion of the First Amendment issues discloses no

basis for this finding of severe burden. Rather, the District Court

seems to be reasoning that since the filing deadline statute pre-

vented the particular candidate, respondent Anderson, from

qualifying for the ballot, the statute must ipso facto severely

burden respondents’ First Amendment rights. Having failed to

provide any factual setting for this conclusion of law, the District

Court thus clearly failed to undertake the Storer analysis which

this Court announced, in Mandel, to be applicable to filing dead-

line challenges. Under the District Court’s analysis, the mere fact

of effect on a candidacy would seem sufficient to require the state

to justify the statute by demonstrating compelling state interests;

yet, the effect of the Maryland statute was to prohibit the candi-

dacy involved in Mandel, and this Court did not find that to be

grounds for finding the filing deadline per se illegal.

The District Court chose not to apply the Mandel test to its

First Amendment analysis for several reasons. Most signifi-

cantly, it considered the Mandel test only in connection with the

Equal Protection issue (A.46) although petitioner certainly did

not argue for any such limitation. Moreover, Mandel itself is

clearly a First Amendment case, not an Equal Protection case,

Mandel, 432 U.S. at 174. Second, the District Court misunder-

stood petitioner to be arguing that Storer and Mandel ‘‘eschew

the application of a compelling interest standard of review’’ and

propound ‘‘a new standard of review in ballot access cases’’

(A.47, 48). Petitioner argued instead that the ‘‘reasonably dili-

gent independent candidate’’ test established by these cases is to

12

be utilized prior to employment of the compelling interest test

where the severity of the burden imposed upon constitutional

rights by a ballot access statute cannot be accurately determined

without evidentiary review. That a filing deadline statute is to be

judged within these parameters is established by Mandel. If the

statute is found to ‘‘severely burden’’ constitutional rights, then,

and only then, must it be justified by compelling state interests.

Williams v. Rhodes; Storer, 415 U.S. at 729.

Third, the District Court stated that the ‘‘reasonably diligent

independent candidate’’ test need only be applied where facts

must be determined, and that that need not be done in this case

because respondents do not challenge Ohio’s signature require-

ments and respondent was ‘‘reasonably diligent’? once he de-

cided to run as an independent (A.50). However, the clear impli-

cation of Mandel is that ‘‘diligence’’ includes making one’s

decision to run for office before March 8. Otherwise, there would

have been no reason for a remand in that case. If the deadline

were in fact per se unconstitutional simply because an early deci-

sion were required, this Court would simply have affirmed the

trial court’s finding of unconstitutionality. Moreover, the plain-

tiff in Mandel did challenge the ‘‘remoteness’’ of the filing dead-

line (A.99), and the District Court dealt with the issue as a ‘‘re-

moteness’”’ issue (A.101, 103-4). Neither the District Court in that

case nor this Court discussed the issues in terms of the signature

requirement and its relation to Maryland’s interest in a candidate

showing community support, as the District Court below sug-

gests (A.50 n.7). At least one other district court has since read

Mandel! to require that the reasonably diligent candidate make up

his mind to run well in advance of a filing deadline rather than

simply act ‘‘diligently’’ once he has made up his mind, Rock v.

Bryant, 459 F.Supp. 64 (E.D. Ark. 1978), aff’d, 590 F.2d 340

(8th Cir. 1978).

As a consequence of its failure to apply the Mandel test, the

District Court assumed the filing statute to be severely burden-

some upon constitutional rights and thus required that it be justi-

fied by compelling state interests in order to sustain challenge.

Had the District Court applied the Mandel test, it would have had

to find that the overall impact of Ohio’s ballot access statutes was

lenient in that they liberally allowed access by independent candi-

13

dates. Under such circumstances, the District Court’s inquiry

need have proceeded no further since a state need justify a ballot

access statute regulating presidential candidates by showing com-

pelling state interests on/y if constitutional rights are severely

burdened. Article II, § 1, Cl. 2, of the Constitution provides

broad authority to state legislatures to regulate the manner of

selection of presidential electors, and state statutes so directed

need be separately justified by a showing of compelling state

interests only if other provisions of the Constitution are bur-

dened. Williams v. Rhodes, 393 U.S. at 29. Thus, it was error for

the District Court to have reached the issue of compelling state

interests in this case.

While ignoring Mande! in its consideration of the standard of

review for First Amendment purposes, the District Court instead

relied primarily upon Kusper v. Pontikes, 414 U.S. 51 (1973), for

the proposition that the only issue was the presence or absence of

compelling state interests justifying Ohio’s filing deadline

(A.40). That case invalidated on First Amendment grounds an

Illinois statute which prohibited a voter from voting in a party

primary if he had voted within the preceding 23 months in

another party’s primary. This had the effect of preventing voters

from. participating each year in the party primary of their choice

since a voter would have to forego voting in at least one primary

election in order to switch parties. This Court noted that there

could be ‘‘little doubt that [the statute] substantially restricts an

Illinois voter’s freedom to change his political party affiliation.”’

414U.S. at 57. Where there is such ‘‘little doubt,”’ it is, of course,

proper to look to compelling state interests to justify the statute.

However, Mandel teaches us that there is doubt as to the effect on

First Amendment rights of a March filing deadline for candi-

dates. Even in the absence of Mandel, one could hardly contend

that requiring a candidate to choose the method by which he will

seek election seven months before the election is analogous to

requiring the voter not to participate at all in a given primary

election if he wishes to switch parties. This case involves a shorter

time period than that upheld by this Court in Rosario v. Rocke-

feller, 410 U.S. 752 (1973), sustaining a statute requiring a voter

to decide eleven months before a primary election if he wished to

switch parties.

14

The District Court appears to rely in part (A.36) on this

Court’s decision in Illinois State Board v. Socialist Workers’

Party, 440 U.S. 173 (1979), a case dealing with signature burdens,

for the startling proposition that a filing deadline can itself be a

per se burden upon First Amendment rights. The District Court

has misinterpreted J/linois State Board, neglecting as it did to

distinguish between the nature of the claim at issue therein, a

challenge to a statute solely on Fourteenth Amendment equal

protection grounds, and the First Amendment claims of the

plaintiffs herein. J/linois State Board involved application of a

statute in such a manner as to require an independent candidate

for Mayor of Chicago to secure more petition signatures for

ballot position than would have been required of an independent

candidate for statewide office. The discriminatory operation of

the statute was thus clear and blatant, and it is for this reason that

the Court looked to possible compelling state interests. There was

no finding of a First Amendment violation, and the case is irrele-

vant for purposes of determining how one measures burdens

upon First Amendment rights.*

The District Court adopts language from JIlinois State Board

condemning the tendency of ‘‘overbroad restrictions’’ to ‘‘jeop-

ardize this [First Amendment] form of political expression’’ but

again fails to find any facts which would support a legal conclu-

sion that the statute here challenged is unconstitutional for over-

breadth. Such a concept is meaningless unless framed against a

factual setting that demonstrates how the operation of the statute

is in fact overbroad.

Finally, the District Court (A.38) bases its finding of a First

Amendment violation in part upon its perception that Ohio’s

statute has an extraterritorial impact. In this regard, the District

Court found that if respondent were denied ballot position in

Ohio, and thus denied an opportunity to compete for Ohio’s 25

electoral votes, the value of the votes sought to be cast for respon-

dent by persons in other states, including respondent Eisenstat,

would be diluted. The District Court thus found, in essence, that

. The Court did not reach the First Amendment issues involving a filing

deadline because the lower court postponed decision on these, and a

subsequent settlement eliminated the issue. 440 U.S. at 179-180.

15

there is a requirement that ballot access statutes regulating presi-

dential elections be uniform, among and between a// the states, if

such ‘‘dilution’’ is to be prevented. Certainly, insofar as any one

State imposes requirements on candidates for national office

which are in the slightest way different from those imposed else-

where, the candidate qualifying in one state, but not the other,

and his supporters, can always claim dilution of the value of their

votes in the state in which the candidate qualifies. Yet, that such

cannot be the law is evidenced by Article II, § 1, Cl. 2, of the

Constitution. Its delegation to the several states of the power to

appoint their electors, and to choose the manner by which the

selection shall be made, is eviscerated if the District Court’s view

prevails. Such a delegation of authority to the states certainly

implies a certain amount of diversity in regulation. See Storer,

415 U.S. at 730.

Not only did the District Court fail to apply the test mandated

by this Court but its rule of per se unconstitutionality leads inex-

orably to the untenable conclusion that all state ballot access

Statutes regulating the presidential election must be uniform, a

result which is certainly inconsistent with Article II, § 1, Cl. 2, of

the Constitution. Because this view patently conflicts with the

law as announced by this Court in Storer and Mandel, the is-

suance of a writ of certiorari is essential to a proper determina-

tion of the issues.

3. The District Court’s Determination That Invidious Dis-

crimination In Violation Of The Equal Protection Clause Is

Created By Requiring Independent Candidates For Presi-

dent To File Nominating Petitions On March 20, 1980,

Conflicts With Several Decisions Of This Court.

The District Court found that Ohio Revised Code § 3513.257

works an invidious discrimination against independent candi-

dates in favor of partisan candidates, thus ruling that these candi-

dates were comparable for purposes of analysis under the Equal

Protection Clause of the Fourteenth Amendment. This holding

conflicts with this Court’s previous rulings that political party

and independent candidate approaches are entirely different,

Storer, 415 U.S. at 745; that mere statutory classifications do not

violate the Equal Protection Clause unless they constitute ‘‘in-

16

vidious discrimination,’’ American Party v. White, 415 U.S. 767,

781 (1974), quoting Ferguson v. Skrupa, 372 U.S. 726 (1963); and

that a state is not guilty of such invidious discrimination simply

because it recognizes the differences between different kinds of

candidacies and provides different routes to the election ballot,

Jenness v. Fortson, 403 U.S. 431 (1970). The District Court itself

said: ‘‘One cannot compare for all purposes the independent

candidate with the candidate who conducts his campaign within

the party system; nor can one compare him with a party’’ (A.45),

but nonetheless held that there was sufficient similarity in the

types of candidacies so that the claimed disparate treatment ac-

corded them by Ohio law ‘‘may well be suspect under the Equal

Protection Clause’’ (A.45).

In fact, independent candidacies and partisan candidacies are

in salient ways so completely dissimilar that their comparison for

the purposes of determining the existence of a violation of the

guarantee of equal protection is nearly meaningless. The state is

obligated to recognize and account for these differences in its

regulatory scheme; the ‘‘grossest discrimination can lie in treat-

ing things that are different as though they were exactly alike.”’

Jenness v. Fortson, 403 U.S. at 442.

There are two clear routes to the presidential ballot in Ohio

which persons may seek. Persons wishing to appear as indepen-

dent candidates on the general election ballot must file declara-

tions of candidacy and petitions bearing the signatures of at least

5,000 eligible electors on March 20, 1980, and such signatures

may be gathered from all registered voters notwithstanding party

affiliation, geographical distribution or intention to vote in the

upcoming party primary, Ohio Revised Code § 3513.257. Simi-

larly, persons wishing to vie for Ohio’s delegates to the national

conventions of political parties must file by the same date written

consent to the declarations of candidacy of their delegates, slates

of delegates, and nominating petitions for delegates bearing

1,000 signatures secured statewide and additional signatures

from Congressional Districts, Ohio Revised Code §§ 3513.05

and 3513.12. The numerical difference reflects the more stringent

requirements imposed on the latter category of petitions, includ-

ing that the signers be members of the political party within which

the person wishes to compete, and that geographical distribution

17

requirements be met. Any person may avail himself or herself of

either of these two routes to the general election ballot, but all

persons wishing to do so must have committed themselves to that

candidacy on or before March 20, 1980.

Nevertheless, the District Court found unlawful discrimina-

tion because ‘‘the statutes do permit a partisan candidate to re-

ceive the nomination of his party and thereby appear on the Ohio

general election ballot in November, without previously having

had to file [a declaration of candidacy and nominating petitions]

with the Secretary of State’’ (A.43). Stating that it would disre-

gard the likelihood of such an occurrence, the District Court

concluded that the spectre of this partisan candidate being nomi-

nated by a political party and therefore appearing on the general

election ballot without having declared candidacy on March 20,

1980, and sought delegate support in the primary election was

sufficient reason to find that independent candidates are the vic-

tims of invidious discrimination because they must have declared

their candidacies by March 20, 1980.

What the District Court failed to discern, however, was that

this power of a political party to nominate a candidate for inclu-

sion on the general election ballot is one which was earned on a

date well in advance of March 20, 1980, and in that sense owned

by the political parties themselves, by virtue of their having con-

tinued to meet the requirements of Ohio Revised Code Chapter

3517. In exchange for this privilege, the political parties must poll

a certain percentage of the votes cast for either the governor or all

presidential nominees in the last preceding election. Ohio Revised

Code § 3517.01(A). Parties which fail to win five percent of the

total vote cast automatically cease to be political parties under

state law, lose their rights to certify the names of their nominees

for inclusion on the general election ballot and can only reestab-

lish their ballot position by the filing of petitions bearing signa-

tures of one percent of the total vote for governor or presidential

electors in the last succeeding general election. Moreover, the

timeliness requirements are such that a new political party which

seeks to be awarded ballot position for its nominees must or-

ganize at least 120 days in advance of the next succeeding primary

election. Parties seeking ballot position for their nominees on the

generai election ballot must therefore have qualified as ‘‘political

18

parties’’ under state law at least 45 days before independent

candidates are required to do anything at all.

Assuming it is possible to make any comparison between the

two different routes to the presidential ballot in Ohio, the proper

comparison for equal protection purposes is one drawn between

independent candidates and organizations qualifying as ‘‘politi-

cal parties’’ under state law. Because the ultimate goal of any

campaign for public office is inclusion on the general election

ballot in November, the classes to be compared for equal protec-

tion purposes must necessarily be those which have such ballot

access within their power. Beyond doubt, there are only two

holders of such power of access: independent candidates, who

are guaranteed ballot position through simple compliance with

Ohio Revised Code § 3513.257; and political parties that remain

in compliance with Ohio Revised Code Chapter 3517, thereby

earning the right to certify the name of the party nominee. If

either of these classes is discriminated against, it is the political

parties who are required to organize sooner, and to show a

greater indication of community support by polling five percent

of the vote at either gubernatorial or presidential elections.

The difficulty of making any comparisons concerning dif-

ferent routes to the ballot is underscored in Storer where this

Court stated that ‘‘the political party and the independent candi-

date approaches to political activity are entirely different and

neither is a satisfactory substitute for the other’’, 415 U.S. at 745.

The District Court tended to ignore the difficulty; furthermore,

the District Court did not heed the admonition that ‘‘[A State is

not] guilty of invidious discrimination in recognizing these dif-

ferences [between different types of political organizations] and

providing different routes to the printed ballot’’, Jenness v. Fort-

son, 403 U.S. at 441-2.

The District Court’s obvious error was that while it focussed

on the last dates upon which steps may be taken to have the

names of the two types of candidates simply placed upon the

ballot, it did not account for the timing of the actual awarding of

ballot position. Independent candidates were awarded ballot po-

sition if they were in compliance with Ohio Revised Code

§ 3513.257 on March 20, 1980. Political parties were awarded

ballot position if they had met the requirements of Ohio Revised

19

Code Chapter 3517 on or before February 14, 1980, and they

must thereafter certify the names of their nominees to the Secre-

tary of State at varying times ranging up until late August, 1980.

Yet, the certification of such names is far different from ‘‘qual-

ifying’’ for ballot position; the last point in time at which a

political party can qualify for ballot position is February 14,

1980, whereas any person may qualify as late as March 20, 1980,

by running without party affiliation.

The District Court states that one indication of discrimination

against independent candidates for President is that they must

decide whether to declare their candidacies at a time before cam-

paign issues and the positions of the candidates are known and

before the party platforms are known (A.43-4), from which it can

be implied that the District Court would find discriminatory any

filing deadline which fell in advance of the national party conven-

tions. However, if the current statutory scheme discriminates

against independent candidates, one which allowed independent

candidates to file for ballot position when the national party

conventions are held would work an equal discrimination upon

those party candidates who, the District Court feels, are free to

make their decisions to seek the nomination after the primaries.

This is because the independent who files his nominating peti-

tions in August after the issues have crystallized and the party

platform is known would have a much easier time qualifying for

the general election ballot than the party candidate who makes

the same decision to seek the nomination for the first time at the

convention, since the independent must simply seek petition

signatures while the party candidate must overcome the handicap

of having most of the delegates already awarded to other party

candidates at the primaries. That no manipulation of relative

filing deadlines eliminates the supposed discrimination seen by

the District Court indicates that the classes involved are so dis-

similar as to defy meaningful comparison. Jenness v. Fortson;

Storer.

Therefore, if viewed from the perspective of qualification for

ballot position in the general election, there is no discrimination

against independent candidates and, in fact, the deadline in Ohio

Revised Code § 3513.257, falling as it does at least 45 days after

the final date for qualification by political parties, may actually

20

discriminate in favor of independent candidates. However, the

identical filing deadlines imposed on persons who wish to launch

political campaigns for President in this state, seeking thereby

either delegates to the political party conventions or votes in the

general election, also prevent the imposition of any discrimina-

tion among and between those potential candidates.* The signifi-

cance of eliminating discrimination between these persons was

highlighted by Mr. Justice Stevens, dissenting in Mandel, as an

indication of his concern over the seemingly disparate filing re-

quirements which candidates had to satisfy. Noting that the filing

requirements imposed on independent candidates were far more

burdensome than those which party candidates had to meet, Mr.

Justice Stevens stated, 432 U.S. at 181:

Moreover, it [the disparate treatment] is potentially a mat-

ter of great significance. The decision to become a candidate

may be prompted by a sudden, unanticipated event of great

national or local importance. If such an event should occur

on the 71st day [the day before the filing deadline] before a

primary, national party members could make a timely deci-

sion to run but independents could not.

The statute should be evenhanded in its impact on the

timing of the most important decision any candidate must

make... .

Such disparate treatment is simply not present under the Ohio

Statutes; although the signature burdens are different, with the

partisan candidate required to obtain 1,000 signatures statewide

in addition to 150 from each of 23 Congressional Districts, Ohio

Revised Code §§ 3513.05 and 3513.12, in comparison with the

5,000 which an independent candidate must collect, the restric-

tions placed on the partisan candidate are such that they will

restrict the pool from which such signatures can be drawn. As this

Court itself recognized in Storer, the size of the pool of eligible

signers is relevant in determining the actual extent of the burden

imposed on a candidate.

“ In fact, the discrimination is again in favor of the independent candi-

date, since he may fully qualify for the general election ballot by filing his

nominating petitions on March 20, 1980, whereas the partisan candidate

must not only file nominating petitions for his delegate slate but go on to

win the nomination of his party at the national convention.

21

Whether the comparison is made between persons or between

statutory methods of being awarded ballot position, it is incon-

trovertible that independent candidates are not subjected to any

discrimination at all. All persons wishing to campaign as a way of

garnering support for their candidacies must signify their inten-

tion to do so, and their chosen ballot route, by the filing of

declarations of candidacy and signature petitions on the same

date. Similarly, qualification for positions on the general election

ballot in November can be obtained in one of only two ways: by

declaration of an independent candidacy on or before March 20,

1980, or by compliance on or before February 14, 1980, with the

requirements upon which the status of ‘‘political party’’ is prem-

ised.

No person who is not an independent candidate is ever able to

qualify for ballot position. If such a person chooses not to mount

an independent candidacy on or before March 20, 1980, he may

be accorded ballot position only if he succeeds in capturing the

nomination of a political party which has earned ballot position

by virtue of having fully complied with Ohio Revised Code Chap-

ter 3517 on or before February 14, 1980.* Because the District

Court based its finding of an equal protection violation on an

erroneous alignment of the classes, and failed to recognize the -

differences between different kinds of candidacies and the state’s

concomitant duty to account for these differences in its regula-

tory scheme, its holding is in conflict with the opinions of the

Court in Jenness v. Fortson, American Party v. White, and

Storer.

4. The District Court’s Determination That The State Statute

Did Not Serve The Compelling State Interest Of Preserva-

tion Of Political Stability Is In Conflict With The Decision

Of This Court In Storer v. Brown.

The District Court found that no compelling state interests

were served by the filing deadline statute, and therefore declared

it unconstitutional. It so found notwithstanding the fact that one

, It is important to note that respondent was not denied the opportunity

after March 20, 1980, to have his name placed upon the Ohio presidential

ballot. He needed only to capture the nomination of the Republican or

Democratic Party. In that respect, he is being treated no differently than

22

of the interests clearly served by that statute is the preservation of

political stability, an interest which this Court recognized as a

compelling interest in Storer. Because the filing deadline statute

in fact preserves political stability and the integrity of Ohio’s

primary election system, interests expressly sanctioned by this

Court in Storer, the District Court’s holding to the contrary

simply conflicts with the law as set forth by this Court.

This Court found in Storer that primary elections were ‘‘an

integral part of the entire election process,’’ and the “‘initial stage

in a two-stage process by which the people choose their public

officers.’’ 415 U.S. at 735. This Court then stated, 415 U.S. at

735-36:

It [the direct party primary] functions to winnow out and

finally reject all but the chosen candidates. The State’s

general policy is to have contending forces within the party

employ the primary campaign and primary election to

finally settle their differences. The general election ballot is

reserved for major struggles; it is nota forum for continuing

intraparty feuds... .

Section 6830(d) (Supp. 1974) [the disaffiliation statute]

carries very similar credentials. /t protects the direct pri-

mary process by refusing to recognize independent candi-

dates who do not make early plans to leave a party and take

the alternative course to the ballot. It works against inde-

pendent candidacies prompted by short-range political

goals, pique or personal quarrel... .

It appears obvious to us that the one-year disaffiliation

provision furthers the State’s interest in the stability of its

political system. We also consider that interest as not only

permissible, but compelling and as outweighing the interest

the candidate and his supporters may have in making a late

rather than an early decision to seek independent ballot

status. Nor do we have reason for concluding that the device

California chose, . . . was not an essential part of its overall

mechanism to achieve its acceptable goals. As we indicated

Ronald Reagan, Edward Kennedy, or Jimmy Carter, none of whom

could be placed on the ballot after March 20, 1980, without party designa-

tion but all of whom could seek, as could respondent, to run as ‘‘indepen-

dents’’ prior to that date.

23

in Rosario [v. Rockefeller, 410 U.S. 752 (1973)], the Consti-

tution does not require the State to choose ineffectual

means to achieve its aim. To conclude otherwise might sac-

rifice the political stability of the system 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.

We conclude that § 6830(d). . . is not unconstitutional.

. . . [Emphasis added. ]

The District Court attempted to avoid the clear impact of

Storer’s holding that states may act to ensure the integrity of their

primary elections system by preventing candidates not succeed-

ing in party primary campaigns from filing anew as independents

and using the general election ballot as a ‘‘forum for continuing

intraparty feuds.’’ First, the District Court concluded that Storer

would control only where the actual statute being challenged was

a ‘‘disaffiliation’’ statute, since that was the factual setting of the

first branch of Storer, and found that Ohio’s statute on its face

gave no indication that it was such (A.54). The District Court

viewed disaffiliation as requiring that any person seeking access

to any of the state’s electoral routes, e.g., by filing petitions as an

independent candidate, demonstrate his commitment to that

route by severing all connections with other political parties. The

California statute was obviously focussed on the titular party

membership or participation, if any, of persons seeking ballot

access.

However, petitioner does not claim that the filing statute here

challenged is, in that sense, parallel to the California statute. To

the contrary, petitioner’s central contention is that the filing

deadline statute serves the same interests as the disaffiliation

statute upheld in Storer but by a different method, namely, si-

multaneous filing deadlines for independent candidates and

party primary candidates. Ohio Revised Code §§ 3513.05 and

3513.257. By the establishment of simultaneous filing deadlines

for persons seeking entry into the primary election process and

persons seeking to run as independent candidates, participation

in both processes (as attempted by respondent) is clearly fore-

closed. The petitioner is not attempting to regulate the political

party affiliation of such persons, but only seeks to guarantee that

24

the different means of access to the ballot—either through politi-

cal parties or through independent campaigns—remain separate

and mutually exclusive. This effect is apparent on the face of the

statute despite the District Court’s assertion to the contrary.

The District Court’s misapprehension of the effect of Storer’s

holding in this regard is evident, for the District Court says

(A.54): ‘‘The [petitioner] claims that Anderson would have been

able to meet the March 20 deadline if only he had decided at some

point earlier than March 20 fo disaffiliate, and cease his activities

in the Republican state primaries (emphasis added).’’ Yet, the

petitioner has never suggested that an independent candidate in

Ohio has to disaffiliate or that activity undertaken by an individ-

ual candidate with respect to primaries held in other states would

foreclose his initiation of an independent candidacy in this state,

and the interest which Ohio seeks to serve by use of simultaneous

filing deadlines for all persons seeking to compete for the same

office is the integrity of this state’s primary campaigns and elec-

tions.

The District Court characterized the filing date selected by the

state as simply ‘‘arbitrary’’ (A.56). However, it is hardly arbi-

trary when it is the same date required for filing by party primary

candidates and thus prevents a faltering primary election candi-

date from abandoning his primary election campaign and carry-

ing his differences with fellow party members to the general elec-

tion ballot by running as an independent. This Court’s decision

in Storer recognizes the state’s interest in preserving the integrity

of not only the primary election, but of the primary campaign

itself by allowing states to prevent use of the general election

ballot for the continuation of intraparty feuds. Respondent An-

derson sought to do exactly that by terminating his Republican

primary election campaign in Ohio and seeking to run as an

independent. This would not only have allowed him to continue

raising in the general election the issues he had asserted against

his fellow Republican opponents in the primary, but would also

promote ‘‘splintered parties’’ by pulling away Republican Party

organizers to work in his ‘‘independent’’ campaign. This in fact

happened (see Statement of Case). See Storer, 415 U.S. at 736.

The District Court’s second objection to the relevance of

Storer is that this particular controversy arose with respect to a

presidential election (A.55). This is a curious objection in light of

25

this Court’s having declined to so limit its opinion in Storer. In its

treatment of the persons seeking to run as independent candi-

dates for the Presidency and Vice-Presidency, this Court clearly

assumed that the state interests articulated in the first part of its

opinion with respect to Congressional candidates—interests

which allowed the state to require compliance with disaffiliation

statutes in order to preserve the integrity of the primary campaign

and election—were equally compelling where the offices sought

were national ones. That this is the case is demonstrated by this

Court’s comments concerning the ‘‘community support’’ in-

terest served by the imposition of signature requirements, Storer,

415 U.S. at 743:

As a preliminary matter, it would appear that the State,

having disqualified defeated candidates and recent defec-

tors, has in large part achieved its major purpose of provid-

ing and protecting an effective direct primary system... .

[Emphasis added. ]

This interest in assuring the integrity of the primary election

process, and the fact that it is equally valid in the context of a

presidential campaign, is even more clearly acknowledged in this

Court’s discussion of the persons who, under California law,

would be eligible to sign the petitions circulated by the indepen-

dent presidential and vice-presidential candidates. Although the

entire matter was remanded for additional evidentiary findings,

this Court did state, 415 U.S. at 740-41:

First, we have no doubt about the validity of disqualifying

from signing an independent candidate’s petition all those

registered voters who voted a partisan ballot in the primary,

although they did not vote for the office sought by the

independent. We have considered this matter at greater

length in American Party of Texas v. White, [citations omit-

ted] and we merely repeat here that a State may confine each

voter to one vote in one primary election, and that to main-

tain the integrity of the nominating process the State is war-

ranted in limiting the voter to participating in but one of the

two alternative procedures, the partisan or the non-parti-

san, for nominating candidates for the general election bal-

lot. [Emphasis added. ]

26

This Court has thusly acknowledged that the integrity of the

direct primary election process, a process which no doubt in-

cludes not only the election itself but also the campaign which

precedes it, remains a vital state interest which is undiminished by

the fact that the particular office sought is the Presidency.

Finally, the District Court (A.55) relied upon the fact that

Ohio has a ‘“‘disaffiliation’’ statute in Ohio Revised Code

§ 3513.04, which prohibits persons who have sought nomination

at a primary election from becoming candidates at a general

election by nominating petition, and that the parties stipulated it

was inapplicable to respondent. However, it is difficult to under-

stand how the conceded inapplicability of one statute can be

construed to limit the application of another statute which clearly

prohibits respondent’s independent candidacy under circum-

stances contemplated by Storer, and the District Court cited no

authority for such a proposition.

None of the three reasons put forth by the District Court for

the inapplicability of Storer justifies the result reached. The deci-

sion clearly conflicts with Storer, and, therefore, a writ of cer-

tiorari should be granted.

5. The District Court’s Refusal To Enter Judgment For Peti-

tioner In Accordance With This Court’s Summary Affirm-

ance In Sweetenham v. Rhodes Conflicts With This Court’s

Holding In Mandel v. Bradley That Summary Affirmances

Reject The Specific Challenges Presented In The Statement

Of Jurisdiction Filed With This Court To Initiate An Ap-

peal.

The District Court found that this Court’s summary affirm-

ance in Sweetenham v. Rhodes, decided together with Socialist

Labor Party v. Rhodes, 318 F.Supp. 1262 (S.D. Ohio 1970)

(three-judge court), aff’d sub nom. Sweetenham vy. Gilligan, 409

U.S. 942 (1972), did not control the disposition of this case,

notwithstanding that the issue as framed by the appellants therein

in the Statement of Jurisdiction is identical to the issue deter-

mined by the District Court herein. The District Court’s holding

is therefore squarely in conflict with this Court’s ruling in Man-

del.

The plaintiff in Sweetenham v. Rhodes, an independent candi-

date for Governor of Ohio, contended that three separate statu-

27

tory requirements found in Ohio Revised Code §§ 3513.257 and

3513.258 were unconstitutional, and Judge Kinneary, writing for

the three-judge court, agreed with the plaintiff as to the unconsti-

tutionality of certain geographic distribution and percentage re-

quirements imposed on signature petitions and enjoined their

enforcement. However, the District Court rejected the plaintiff’s

contention that the filing deadline itself was unconstitutional and

stated, 318 F.Supp. at 1273:

The state has an interest in having persons who otherwise

qualify for ballot position officially become candidates at a

designated time prior to an election. /n addition, the state

may reasonably require that all persons seeking elective of-

fice become officially declared candidates on or before a

certain date preceding an election. One may not play dog in

a political manger by withholding his determination of can-

didacy until after party candidates are chosen by the pri-

mary process. [Emphasis added. ]

At the time Sweetenham was considered by the District Court,

Ohio law required that nominating petitions be filed in 1970 by

February 4. Thus, the District Court in Sweetenham in fact ap-

proved of a filing deadline set on a date well in advance of the

March 20, 1980, deadline required by Ohio Revised Code

§ 3513.257 in the current year. That the constitutionality of the

filing deadline was directly in issue in Sweetenham is obvious

from the language of the Jurisdictional Statement filed therein

(A.111):

2) Where a state has prescribed that independent candi-

dates for political office must file their nominating peti-

tions approximately nine months before the general

election and where such requirement is not shown to be

justified by any compelling state need, are the First and

Fourteenth Amendments contravened?

The issue as framed in Sweetenham is clearly identical to that

raised and disposed of by the District Court in the instant case,

which found a violation of the respondents’ First and Fourteenth

Amendment rights after determining that the filing deadline stat-

ute served no compelling state interests. However, the District

Court here concluded that the lower court’s judgment in

28

Sweetenham did not in fact even reach the question of the consti-

tutionality of the filing deadline itself, and that disposition of

that question had been foreclosed because of ‘‘the failure of the

challenging plaintiffs to allege a real and immediate injury pre-

senting a case or controversy within Article III of the United

States Constitution that would be capable of adjudication by the

district court’’ (A.57 n.9),

The District Court, in concluding that no case or controversy

had been presented to the three-judge court which decided

Sweetenham, said, ‘‘Having failed even to tender a nominating

petition, neither [plaintiffs] were in a position to place in issue a

deadline regulating the time for filing those petitions’’ (A.57

n.9). Yet, the Sweetenham decision itself gives no indication that

the District Court considered itself unable to dispose of the filing

deadline challenge because of a lack of ‘‘case or controversy.’’

Moreover, Sweetenham clearly presented the trial court with

‘‘conflicting contentions of the parties . . . [which] present a

real, substantial controversy between parties having adverse legal

interests, a dispute definite and concrete, not hypothetical or

abstract.’’ Babbitt v. United Farm Workers Nat’l Union, 442

U.S. 289, 298 (1979), citing Railway Mail Association v. Corsi,

326 U.S. 88, 93 (1945). The plaintiff in Sweetenham demon-

strated a realistic danger of sustaining a direct injury as a result of

the operation and enforcement of the filing deadline statute, see

O’Shea v. Littleton, 414 U.S. 488, 494 (1974), and thus presented

to the District Court a real and substantial controversy admitting

of specific relief, see Aetna Life Ins. Co. v. Haworth, 300 U.S.

227, 241 (1937), not a request for an advisory opinion to be based

upon a hypothetical set of facts.

That being the case, the District Court’s decision conflicts with

the holding of this Court that lower courts are bound by sum-

mary decisions of this Court ‘‘until such time as the Court in-

forms [them] that [they] are not,’’ Hicks v. Miranda, 422 U.S.

332, 345 (1975). The District Court’s decision is also clearly at

odds with this Court’s holding in Mandel, for while there are

limitations on the reach of summary affirmances, see Edelman v.

Jordan, 415 U.S. 651 (1974), they do ‘‘without doubt reject the

specific challenges presented in the statement of jurisdiction and

do leave undisturbed the judgment appealed from,’’ Mandel, 432

U.S. at 176 (1977) (emphasis added).

29

This Court’s decision in Mandel contains a significant discus-

sion of the precedential value of its summary affirmances. Man-

del concerned the application by a district court in Maryland of

this Court’s holding in Tucker v. Salera, 424 U.S. 959 (1976),

wherein this Court summarily affirmed a Pennsylvania district

court decision. See Salera v. Tucker, 399 F.Supp. 1258 (E.D. Pa.

1975). The lower court in Mandel had held, after only a cursory

examination of the relevant issues, that this Court’s ruling in

Tucker v. Salera controlled, without considering that the state

statutory scheme invalidated in the Pennsylvania case contained

features not found within the Maryland law. This Court said in

that regard, Mandel, 432 U.S. at 176-177:

Here, the District Court ruled that legally ‘‘Sa/era decides

the issue before us, and as the latest expression of the Su-

preme Court, we are bound to follow it.’’ [Citation omit-

ted.] The precedential significance of the summary action in

Salera, however, is to be assessed in light of all of the facts in

that case; and it is immediately apparent that those facts are

very different from the facts of this case. There, in addition

to the early filing date, signatures had to be gathered within

a 21-day period. This limited time enormously increased the

difficulty of obtaining the number of signatures necessary

to qualify as an independent candidate. [Footnote omitted.]

This. . . is sufficient to distinguish Salera from the case

now before us. . . . In short, Sa/era did not mandate the

result reached by the District Court in this case.

This Court’s disagreement with the use of its summary affirm-

ance in Tucker v. Salera by the district court in Maryland is

readily understood. Because the statutory schemes were dif-

ferent, and because the applicable Storer test includes an analysis

of the overall impact of state ballot access requirements on the

‘freasonably diligent independent candidate,’’ Storer, 415 U.S.

at 742, this Court found that its summary affirmance in Tucker v.

Salera could not be applied to invalidate the statutes of another

state. Maryland’s statutes were less stringent than the statutes at

issue in the Pennsylvania case.

However, the problems faced by the Maryland court in its

attempt to utilize the summary affirmance of the Pennsylvania

30

case for its precedential value are simply not present in the case at

bar. The precise holding of Sweetenham on the question of the

constitutionality of Ohio’s filing deadline statute was that a dead-

line which occurred on February 4, 1970, was not unconstitu-

tional. While a decision in a previous case which this Court sum-

marily affirms may not control the result of subsequent parallel

litigation where the restriction sought to be upheld in the later

case is more stringent than that upheld in the earlier case, see Kay

v. Brown, 424 F.Supp. 588 (S.D. Ohio 1976), surely the prior

judicial approval of a greater restriction subsumes within it im-

plicit approval of a lesser restriction of the same type. Because the

deadline currently imposed by Ohio Revised Code § 3513.257 is

more lenient than that found constitutional by the District Court

in Sweetenham, the District Court should have granted judgment

to petitioner.

CONCLUSION

For these reasons, a writ of certiorari should issue to review the

judgment and opinion of the District Court prior to the rendering

of judgment on the appeal therefrom in the Sixth Circuit Court

of Appeals.

Respectfully submitted,

WILLIAM J. BROWN

ATTORNEY GENERAL OF OHIO

JOEL SANFORD TAYLOR

Deputy Chief Counsel

ADRIENNE C. LALAK

Assistant Attorney General

State Office Tower

30 East Broad Strect

Columbus, Ohio 43215

(614) 466-8486

Attorneys for Petitioner

August , 1980

31

Judgment ce ey

‘ bes bee be

JIU BLYTI AR CLERK

UNITED STATES DISTRICT COURT 3 yee

em due 19 10 30 Ai 789

SOUTHERN DISTRICT OF OHIO U.S. 05TMUET COURT

EASTERN DIVISION SOUTREEN GIST. CHO

CAST. CY, COLUNBUS

John B. Anderson, et al.,

Vv. : Case Number: C-2-80-400

Anthony J. Celebrezze, Jr.,

JUDGMENT

This action came on for consideration before the Court, The Honorable Robert M. Duncan

United States District Ju‘'ye, presiding. ‘The issues having heen duly considered and a

decision having been duly rendered,

IT IS ORDERED AND ADJUDGED THAT: the motion for summary judgment of defendant Anthony J.

Celebrezze, Jr., is DENIED: the motion for preliminary injunction of the plaintiffs is

now moot and’ is therefore DENIED; and plaintiffs' motion for summary judgment is GRANTED.

It is ADJUDGED and DECREED that R.C. 3513.257, as applied to plaintiffs Anderson and Hetrick,

is violative of plaintiffs' rights to political association under the First and Fourteenth

Amendments to the United States Constitution, and is violative of plaintiffs' rights to

equal protection under the Fourteenth Amendment to the United States Constitution. Judgment

is entered for the plaintiffs. It is hereby ORDERED that the defendant Secretary of

State accept and process the plaintiffs' petition and other documents as if timely filed

under R.C. 3513.257. It is further ORDERED that the defendant cause Anderson's name to

appegr on the Ohio ballot in the November 4, 1980, presidential general election, if

aside from R.C. 3513.257 he has otherwise met the requirements of Ohio's election laws.

RECEIVED

JUL2 3 1930

Aight ala WES OFFA

Phy? CaNNOLS S AUCTION

Approved for Entry

tates Distric ge

. wu 4

Dated at Columbus, Ohio this |! “day of July . » 1980

D. LYTER, CLERK

32

Opinion and Order of District Court

IN THE

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DistrRICT OF OHIO

EASTERN DIVISION

—>

Case No. C-2-80-400

>

JOHN B. ANDERSON, et al.,

Plaintiffs,

V.

ANTHONY J. CELEBREZZE, JR.,

Defendant.

— oe

OPINION

Plaintiff John B. Anderson is an independent candidate for

the office of President of the United States. He declared his

independent candidacy on April 24, 1980. On May 16, seeking

to place his name on the November ballot in Ohio, Anderson

tendered to defendant Anthony J. Celebrezze, Jr., Secretary

of State of Ohio, those documents required by Ohio law to

effect Anderson’s nomination as a candidate for that office.

The defendant rejected Anderson’s filing, citing as the sole

ground therefor Anderson’s failure to file by the deadline set

by Ohio Revised Code (R.C.) § 3513.257. That deadline

requires an independent to file his nomination papers 75 days

before the primary election in June.

33

In this election year, the filing deadline falls on March 20,

1980, some 229 days prior to the general election. Upon the

rejection of his nominating petition, plaintiff Anderson and

three of his supporters filed this lawsuit seeking injunctive

relief to place his name on the ballot as well as a declaration

that R.C. 3513.257 operates to violate the constitutional rights

of Anderson and of electors and voters supporting him in

Ohio and across the nation.

Jurisdiction is invoked pursuant to Article II, § 1, Article

VI, and the First, Fifth and Fourteenth Amendments of the

Constitution of the United States; 28 U.S.C. §§ 1331, 1343(3),

and 2201-02; and 42 U.S.C. § 1983.

The case is before the Court on the parties’ cross-motions

for summary judgment and on plaintiffs’ motion for

preliminary injunction. The parties have submitted this case

on a lengthy stipulation of facts which is appended to this

opinion. Following an expedited briefing schedule, the matter

was argued to the Court on June 26, 1980. Because there

appears to be no genuine issue as to any material fact, the

Court finds this case appropriate for summary judgment. Fed.

R. Civ. P. 56(c).

Upon careful consideration of the important issues here

presented to it, the Court holds that R.C. 3513.257 imposes a

substantial burden on plaintiffs’ fundamental rights and is not

justified by any compelling state interest. Accordingly, the

Court concludes that the statute is unconstitutional and the

defendant must accept plaintiffs’ nominating petition and

other documents for processing. '

Discussion of Law

Defendant Celebrezze concedes that the sole reason for

rejecting Anderson’s filing was that it was not tendered by

March 20. Therefore, the sole statutory provision at issue in

! Having resolved below that the statute is unconstitutional under the

First and Fourteenth Amendments, the Court does not reach

plaintiffs’ claims under the Supremacy Clause of Article VI of the

United States Constitution.

34

this case is the first sentence of R.C. 3513.257? which

establishes the time deadline for the filing of a declaration of

candidacy and nominating petitions necessary to qualify an

independent for candidacy.

This filing deadline has emerged virtually unscathed from

the rather tumultuous course the Ohio election laws have

taken since the Supreme Court subjected them to thorough

examination in the landmark case of Williams v. Rhodes, 393

U.S. 23 (1968). In Williams the Court held that the Ohio

electoral scheme, taken as a whole, burdened voting and

associational rights, working an invidious discrimination in

violation of the Equal Protection Clause.’ The statutory

scheme required an unusually high number of signatures (15%

of the ballots cast in the last gubernatorial election), a highly

structured state political organization, a primary election

conforming to detailed and rigorous standards, and an early

filing deadline. It made no provision for independents or for

write-in candidates. Finding that the electoral scheme

effectively excluded minor parties from the electoral process

and operated to preserve the position of the two major parties

2 This sentence reads:

Each person desiring to become an independent candidate for an

office for which candidates may be nominated at a primary

election, except persons desiring to become independent joint

candidates for the offices of governor and lieutenant governor,

shall file no later than four p.m. of the seventy-fifth day before the

first Tuesday after the first Monday in June [i.e., the date of the

primary election, see R.C. 3513.01] at which such candidacy is to

be voted for by the voters, a statement of candidacy and

nominating petitions provided in section 3513.261 of the Revised

Code.

3 Mr. Justice Black’s opinion for the Court was joined by three other

justices. Mr. Justice Douglas joined in the opinion and concurred in

the decision emphasizing that the First Amendment and the Due

Process Clause of the Fourteenth Amendment provided an additional

source of protection for plaintiffs’ rights. Mr. Justice Harlan

concurred in the result, stating in his view the decision should rest

entirely on the basic right of political association assured by the First

Amendment and the Due Process Clause of the Fourteenth

Amendment. Mr. Justice Stewart, Mr. Justice White and Mr. Chief

Justice Warren dissented.

35

as the only meaningful contenders on the Ohio ballot, the

Court upheld a challenge by two minor parties seeking access

to the presidential election ballot.

Since that time, Ohio has significantly lowered its signature

requirement to 5,000, which in this election year amounts to

about twelve one-hundredths of one percent of the vote in the

last presidential contest. It now permits write-in votes for

candidates filing a declaration of candidacy and a slate of

presidential electors 20 days before the election. R.C.

3513.041. It permits independents to run for President and

minor parties to qualify without primary elections.

Viewing the present statutory scheme as a whole it is

arguable that these changes softened the restrictive impact of

the filing deadline. In addition, the deadline itself has since

been amended to fall later in the election year. In 1968 the

filing date fell on February 7. Williams v. Rhodes, supra, 393

U.S. at 26. Thus the precise issue presented here, namely,

whether the present Ohio filing deadline works an unconstitu-

tional deprivation, was not decided by the Supreme Court in

Williams v. Rhodes.

On the other hand, and notwithstanding the changes noted,

the deadline remains substantially the same as the deadline

forming part of the restrictive statutory scheme enacted

between 1948 and 1952 after the Henry Wallace campaign in

1948, see Socialist Labor Party v. Rhodes, 318 F.Supp. 1262,

1269 and n.11 (S.D. Ohio 1970) (three-judge court); Williams

v. Rhodes, supra, 393 U.S. at 47 n.9 (Harlan, J., concurring),

and expressly included by the Supreme Court among the laws

comprising the restrictive scheme it held unconstitutional in

Williams. 393 U.S. at 27.

The First Amendment and Fundamental Rights

Implicated by R.C. 3513.257

Ballot access jurisprudence has undergone considerable

development in the 12 years since the Court decided Williams

v. Rhodes. The appropriate starting point in this analysis is,

therefore, the most recent Supreme Court opinion in the area

36

of ballot access laws, Illinois Board vy. Socialist Workers

Party, 440 U.S. 173 (1979). While that case dealt with a

different type of restriction—signature requirements—than is

at issue here, it summarizes succinctly the fundamental rights

implicated by restrictions on ballot access:

Restrictions on access to the ballot burden two distinct

and fundamental rights, ‘‘the rights of individuals to

associate for the advancement of political beliefs, and the

right of qualified voters, regardless of their political

persuasion, to cast their votes effectively.’’ [Citing

Williams v.. Rhodes, 393 U.S. 23 (1968)]. The freedom to

associate as a political party, a right we have recognized

as fundamental, see 393 U.S. at 30-31, has diminished

practical value if the party can be kept off the ballot.

Access restrictions also implicate the right to vote

because, absent recourse to referendums, ‘‘voters can

assert their preferences only through candidates or parties

or both.’’ Lubin v. Panish, 415 U.S. 709, 716 (1974). By

limiting the choices available to voters, the State impairs

the voters’ ability to express their political preferences.

And for reasons too self-evident to warrant amplification

here, we have often reiterated that voting is of the most

fundamental significance under our constitutional struc-

ture. Wesberry v. Sanders, 376 U.S. 1, 17 (1964);

Reynolds v. Sims, 377 U.S. 533, 555 (1964); Dunn v.

Blumstein, [405 U.S. 330, 336 (1972)].

Id. at 184.

R.C. 3513.257 does abridge fundamental rights of the

plaintiffs. The deadline prevents plaintiff Anderson from

appearing as a candidate on the Ohio ballot in the November

election. It likewise prevents plaintiff George H. Hetrick from

qualifying as a candidate for presidential elector pledged to

support Anderson in that election. In so doing, the law clearly

burdens these plaintiffs’ rights of expression and association

secured by the First Amendment. It implicates an individual’s

‘*important interest in the continued availability of political

opportunity,’’ Lubin v. Panish, 415 U.S. 709, 716 (1974), and

37

his right ‘‘to associate for the advancement of political

beliefs.’’ Williams v. Rhodes, supra, 393 U.S. at 30. Denying

these plaintiffs access to the ballot may not directly penalize

the exercise of their right to associate, but it does diminish the

effectiveness of their exercise of the right.

While Anderson may still participate in the election by

virtue of Ohio’s write-in procedure, it requires little discussion

to recognize that a write-in candidacy is an inadequate

alternative to ballot placement. As the Supreme Court

observed in Lubin v. Panish, supra, 415 U.S. at 719, n.5

“*[t]he realities of the electoral process . . . strongly suggest

that ‘access’ via write-in votes falls far short of access in terms

of having the name of the candidate on the ballot.’’

The First Amendment associational rights implicated by the

deadline are inextricably bound up with a candidate’s First

Amendment rights of expression, which are also abridged by

the filing deadline. As the Supreme Court recognized in

Illinois Board, supra, 440 U.S. at 186, ‘‘an election campaign

is a means of disseminating ideas as well as attaining political

office. . . . Overbroad restrictions on ballot access jeopardize

this form of political expression.’’ In some ways, ballot

placement may signal the political viability of a campaign and

trigger funding, media coverage, and credibility in the minds

of voters. All serve to open channels for the dissemination of

the candidate’s political message.

In a similar fashion the individual’s right to a place on the

ballot overlaps with and is intertwined with fundamental rights

of the voters. Williams v. Rhodes, supra, 393 U.S. at 30;

Lubin v. Panish, supra, 415 U.S. at 716. By preventing

Anderson from appearing on the ballot, the filing deadline

denies plaintiff Leslie Laufman, M.D., and other registered

voters in Ohio like her who wish to cast their vote in the 1980

general election for the slate of electors pledged to Anderson,

the constitutional right to associate for the advancement of

political beliefs, Kusper v. Pontikes, 414 U.S. 51, 56-57 (1974)

and the fundamental right ‘‘to cast their votes effectively’’ for

the candidates of their choice. Williams v. Rhodes, supra, 393

U.S. at 23. As with the expression and associational rights of

38

the candidates themselves, the right to vote ‘‘has diminished

practical value if the party [or candidate] can be kept off the

ballot.’’ Jilinois Board, supra, 440 U.S. at 184.

Furthermore, in the case of a national presidential race, the

state deadline affects the rights of voters supporting Anderson

not only in Ohio, but also in other states where his name will

appear on the ballot. Plaintiff Gerald M. Eisenstat is a

registered voter in the State of New Jersey where Anderson’s

name has been certified to appear on the ballot in the 1980

general election. Eisenstat intends to cast his vote for the slate

of electors pledged to Anderson in New Jersey. As of June 9,

1980, supporters of Anderson have gathered sufficient

signatures (if determined valid) in each of ten states to place

his name on the ballot as an independent candidate for

President. Active petition drives are underway in nine

additional states. Anderson’s political campaign organization,

the National Unity Campaign, has established an extensive

network of offices nationwide. The Campaign intends to

obtain and file the requisite number of signatures to qualify

for the ballot in all the remaining states as quickly as possible.

In addition to Ohio, it appears that Anderson has not met the

filing deadlines of four states. The Anderson Campaign has

instituted or intends to institute actions, if mecessary,

challenging those deadlines in order to obtain access to the

ballots in those states as well.‘

The goal of voters such as plaintiff Eisenstat in states where

Anderson will appear on the ballot is to amass enough

electoral votes to elect Anderson. Ohio’s deadline, by denying

Anderson a place on the ballot, removes the sixth largest slate

of electors from Anderson’s reach and thereby reduces the

total pool of electoral votes for which he may compete

nationwide by 25 electors. This arguably dilutes the vote of

Eisenstat and others similarly situated. Although in a

4 The Ohio deadline falls earlier in the election year than all but two

other states: Maryland and New Mexico. The plaintiffs have already

obtained a preliminary injunction placing Anderson on the ballot in

New Mexico. Anderson v. Hooper, Case No. 80-432-M (D. N.M. Jul

8, 1980). ,

39

somewhat different context, the Supreme Court has noted thai

‘*[t]o the extent that a citizen’s right to vote is debased, he is

that much less a citizen.’’ Reynolds v. Sims, 377 U.S. 533, 567

(1964).

The rights implicated by the Ohio filing deadline ‘‘rank

among our most precious freedoms.’’ Williams v. Rhodes,

supra, 393 U.S. at 23. ‘‘Other rights, even the most basic, are

illusory if the right to vote is undermined.’’ Wesberry vy.

Sanders, 376 U.S. 1, 17 (1964). The right to vote secures all

other First Amendment rights by enabling the people to

choose those who would make and enforce the laws; at the

same time, it seems to me, voting is itself an exercise of First

Amendment rights because it affords a voice for the

expression of political preferences and a vehicle for associating

for the propagation of political beliefs.

In assessing the extent of the burden on the exercise of these

rights, the amount of support for a barred candidate is

relevant. See, e.g., Williams v. Rhodes, supra, 393 U.S. at 34.

Anderson’s losses in each of the Republican primaries he

entered prior to April 24 indicate quite clearly he did not enjoy

support from a majority of the Republican Party. On the

other hand, the parties submitted five exhibits summarizing

the results of opinion polls conducted by national polling

organizations since the announcement of Anderson’s indepen-

dent candidacy reflecting that he has support from between

23% (nationally) and 44% (New York) of the electorate. He

collected contributions from over 40,000 individuals during the

five weeks between April 24, 1980 and June 3, 1980. Support

for Anderson’s independent candidacy appears to be substan-

tial, and the number of persons in Ohio and elsewhere whose

fundamental rights are implicated by the Ohio deadline is

similarly substantial.

40

The Standard of Review under the First

and Fourteenth Amendments

When rights as fundamental as these are substantially

abridged by legislative enactment, the First and Fourteenth

Amendments command that the law may be justified only if it

is necessary to achieve a compelling state interest. I believe this

is the import of the Supreme Court’s decision in Kusper v.

Pontikes, 414 U.S. 51 (1974). In Kusper the Court, in striking

down a voter disaffiliation law, made no mention of the Equal

Protection Clause, but grounded its decision directly on First

Amendment protection of political association and the Due

Process Clause of the Fourteenth Amendment:

There can no longer be any doubt that freedom to

associate with others for the common advancement of

political beliefs and ideas is a form of ‘‘orderly group

activity’’ protected by the First and Fourteenth Amend-

ments. NAACP vy. Button, 371 U.S. 415, 430; Bates v.

Little Rock, 361 U.S. 516, 522-523; NAACP v. Alabama,

357 U.S. 449, 460-461. The right to associate with the

political party of one’s choice is an integral part of this

basic constitutional freedom. Williams v. Rhodes, 393

U.S. 23, 30. Cf. United States v. Robel, 389 U.S. 258.

To be sure, administration of the electoral process is a

matter that the Constitution largely entrusts to the States.

But, in exercising their powers of supervision over

elections and in setting qualifications for voters, the

States may not infringe upon basic constitutional

protections. See, e.g., Dunn v. Blumstein, 405 U.S. 330;

Kramer v. Union School District, 395 U.S. 621;

Carrington v. Rash, 380 U.S. 89. As the Court made

clear in Williams v. Rhodes, supra, unduly restrictive

state election laws may so impinge upon freedom of

association as to run afoul of the First and Fourteenth

Amendments. 393 U.S., at 30. And see id., at 35-41

(Douglas, J., concurring); id., at 41-48 (Harlan, J.,

concurring).

4]

As our past decisions have made clear, a significant

encroachment upon associational freedom cannot be

justified upon a mere showing of a legitimate state

interest. Bates v. Little Rock, supra, at 524; NAACP v.

Alabama, supra, at 463.

Id. at 56-58. And the Court in Kusper made it clear that a law

infringing these rights be the least restrictive means to achieve

the State’s interest:

For even when pursuing a legitimate interest, a State may

not choose means that unnecessarily restrict constitu-

tionally protected liberty. . . . If the State has open to it

a less drastic way of satisfying its legitimate interests, it

may not choose a legislative scheme that broadly stifles

the exercise of fundamental personal liberties. Shelton v.

Tucker, 364 U.S. 479, 488.

Id. at 58-59. And see American Party of Texas v. White, 415

U.S. 767, 780 (1974) in which it was stated, ‘‘whether the

qualifications for ballot position are viewed as substantial

burdens on the right to associate or as discrimination against

parties not polling 2% of the last election vote, their validity

depends upon whether they are necessary to further compel-

ling state interests.’’ (Citing Storer v. Brown, supra, at 729,

33; footnote omitted). See also Williams v. Rhodes, supra, 393

U.S. at 35-41 (Douglas, J., concurring); id., at 44-48 (Harlan,

J., concurring).

It may be that after Kusper v. Pontikes it is enough to find

that a law such as this abridges constitutionally protectible

rights under the First Amendment to trigger the State’s duty to

establish a compelling state interest justifying that abridgment.

Nevertheless, the plaintiffs assert their claims additionally

under the Equal Protection Clause of the Fourteenth

Amendment. The Court will now address that argument.

42

Equal Protection

Plaintiffs’ equal protection argument, simply put, is that the

deadline unfairly discriminates against independent candidates

with respect to the time when they, as compared with

candidates of both major and minor parties, are required to

qualify as candidates for the general election.

Under Ohio law, the names of the candidates of the two

major parties are placed on the general election ballot by the

Secretary of State after they are nominated by their respective

national party conventions. R.C. 3505.10, 3513.11. In 1980, in

the case of the Democratic candidate, this will not occur until

approximately August 18. Minor party candidates need not

certify their nominees to the Secretary of State until 75 days

before the general election, that is, on or about August 20.

R.C. 3505.10. This year the defendant will prepare the ballot

after the completion of the national party nominating

conventions in mid to late August.

The thrust of plaintiffs’ argument appears to be that the

early filing deadline compels independent candidates to declare

their candidacy 75 days prior to the primary election, four to

five months earlier than partisan candidates. By doing so, the

deadline effectively locks independents into place on March

20, 1980, leaving the parties until late August to develop the

issues and to choose a nominee they hope will best respond to

those issues.

Viewed in another way, the deadline operates to bar any

independent candidacies not declared by March 20 although

party candidates may run in the general election without

having filed on that date.

A

The Secretary of State argues that similar treatment is

afforded the different types of candidates, and that no

discrimination occurs because party candidates are also

required to meet the March 20 deadline by causing their

delegates to file at that time in order that they may participate

43

in the primary. The delegates, according to the Secretary of

State, are in actuality surrogates for the candidate himself.

Defendant argues that because the delegates are bound by

local party rules to cast their first ballot at national

nominating conventions for the candidate chosen by Ohio

voters in the primary, and because the role of party primaries

in the nominating process has become more important in

recent years, it is unlikely that a party candidate can sit on the

sidelines during the primaries, as for example General

Eisenhower did in 1952, and become the nominee of a major

party.

Therefore, according to the defendant’s reasoning, both

partisan and independent candidates for the most part are held

to the same March 20 deadline, and there is no disparate

treatment of them.

The Court cannot accept defendant’s argument. The Ohio

statutes require the independent to commit himself early in the

election year to his independent candidacy and grant the

parties, both major and minor, until late August to choose

their candidates. Regardless of the likelihood of such an

occurrence, the statutes do permit a partisan candidate to

receive the nomination of his party and thereby appear on the

Ohio general election ballot in November, without previously

having had to file with the Secretary of State. To these

partisan candidates, emerging from the political conventions in

mid-summer, R.C. 3513.257 has no application. If a party

candidate does not file on March 20, he is by no means barred

from running as his party’s choice in the coming general

election. An independent’s failure to file at that early date

does in fact work such a forfeiture.

In addition, defendant’s argument tends to ignore material

differences between running as a candidate in the general

election and running as a candidate in a party primary. In

order to win the primary, partisan primary candidates aim to

attract the support of other partisans. At a general election,

candidates appeal to the entire national constituency. Before

the party primaries, surely the general election campaign issues

and the positions of the candidates have not yet crystallized.

44

The platform positions upon which party candidates run in the

general election are hammered out at the convention, long

after the primary. When the party candidate files his

declaration of candidacy on March 20, he is making the

statement that he intends to vie in the primary for the votes of

members of his party: whether he will run in the general

election as his party’s choice is by no means assured. On the

other hand, when the independent files his declaration of

candidacy and his nominating petitions on March 20, he is

making the statement that he intends to run, not in the

primary, for he is not in that race, but in the general election

in November.

In some respects, running in the party primary is an

exercise—an experiment aimed at determining whether the

candidate can raise enough support and enthusiasm among

party members to allow for a continued quest for the

presidency. By March 20, before the primary winners are

known or party platforms established and far ahead of the

final selection of the party candidates, the independent must

evaluate the support and enthusiasm for his candidacy and

determine whether he should run in the general election seven

months later.

For these reasons, the Court concludes that the Ohio

statutory scheme does in fact treat partisans and independents

differently. The question then becomes whether these

differences in treatment are justified by functional dissimilari-

ties between the two types of candidacies.

B

The Supreme Court has noted that ‘‘[t]he fact is that there

are obvious differences in kind between the needs and

potentials of a political party with historically established

broad support on the one hand, and a new or small political

organization on the other. [A State is not] guilty of invidious

discrimination in recognizing these differences and in provid-

ing different routes to the printed ballot.’’ American Party of

Texas v. White, 415 U.S. 767, 782 n.13 (1974), quoting from

45

Jenness v. Fortson, 403 U.S. 431, 441-42 (1971). The Supreme

Court has recognized that it couid be a violation of equal

protection were the State to treat identically what in the

political arena are two fundamentally different forms of

candidacy. Jenness v. Fortson, supra, 403 U.S. at 442.

Applying this reasoning, it can be argued that there may be

no invidious discrimination between entities which are by

nature to be handled differently. One cannot compare for all

purposes the independent candidate with the candidate who

conducts his campaign within the party system; nor can one

compare him with a party. It seems equally clear, however,

that statutory line-drawing that operates to abridge fundamen-

tal rights of some persons must be explicable in terms of

differences between the persons on either side of the line.

In the Court’s view, the partisan candidate for the national

office of President is similar enough in critical ways to the

independent candidate for that office, that to treat the two

dissimilarly, i.e., by subjecting the independent to R.C.

3513.257 and not the partisan, arguably states a claim under

the Equal Protection Clause.

Thus notwithstanding the extreme importance of the

partisan candidate’s affiliation with the support superstructure

and machinery of a political party, a critical element of his

success or failure at the general election is the personal

constituency which must rally to his cause. This vital support

depends significantly on the candidate’s appeal as an

individual.

Likewise an independent candidate looks to develop a

constituency that is attracted to him as an individual as well as

to his stance on the issues. It is not, then, unrealistic to find

that a voter seeking a presidential candidate to support often

looks not so much at labels, but at persons. Because the

personal and issue appeal of a partisan candidate vies in many

respects equally on the political field with the independent’s

personal and issue appeal, the disparate treatment accorded

these candidates in Ohio may well be suspect under the Equal

Protection Clause.

46

At minimum there is sufficient similarity in the candidacies

of the two to require that any law treating them differently be

narrowly drawn to afford the greatest protection to the

fundamental rights involved.

The Standard of Review under the

Equal Protection Clause of the Fourteenth Amendment

In Illinois Board v. Socialist Workers Party, 440 U.S. 173

(1979), the Court applied a standard equal protection analysis,

balancing the interests of the State in maintaining a

classification against the burdens on fundamental rights

imposed by the classification, and holding that the classifica-

tion was unnecessary to achieve any compelling interest:

When such individual rights are at stake, a State must

establish that its classification is necessary to serve a

compelling interest. American Party of Texas v. White,

415 U.S. 767, 780-81 (1974); Storer v. Brown, 415 U.S.

724, 736 (1974); Williams v. Rhodes, supra, at 31.

* * * * *

The signature requirements . . . are plainly not the least

restrictive means of protecting the State’s objectives. . .

appellant has advanced no reason, much less a compel-

ling one, why the State needs a more stringent

requirement for Chicago.

Id. at 184-86.

The Secretary of State argues vigorously that the compelling

interest standard stated in //linois Board is not applicable to

this case because the Supreme Court in J/linois Board dealt

with a statute which, on its face, evidenced a blatant

discrimination. The defendant urges further that the Court

should employ a test set forth in Storer v. Brown, 415 U.S.

724 (1974) and Mandel v. Bradley, 432 U.S. 173 (1977) to

require a preliminary showing by plaintiffs that Anderson is a

‘*reasonably diligent candidate’’ before bringing a compelling

state interest analysis into play.

47

The Court rejects both of these arguments for the following

reasons. First, it is clear from the language of the Court’s

opinion in J/linois Board and from the facts of that case that it

was analyzing the constitutionality of the statute as applied

rather than on its face.’

Second, the Supreme Court in Storer and Mandel did not

eschew the application of a compelling interest standard of

review. A careful reading of the Storer opinion indicates the

Court applied that standard, finding that a compelling state

interest justified barring one set of plaintiffs from the ballot,

and that its application was frustrated by an inadequate record

as to the others.

The defendant’s contention that the Storer Court pro-

pounded a new test establishing a threshold which must be

crossed by the challenger before the State need assert any

compelling interest is predicated on the following passage

from that opinion:

Third, once the number of signatures required in the 24-

day period is ascertained, along with the total pool from

5 The statute at issue in //linois Board provided different signature

requirements for different political offices. Thus, new political parties

and independents were required to obtain the signatures of 25,000

qualified voters to appear on the ballot in statewide elections. 440

U.S. at 175. In order to appear on the ballot for offices of political

subdivisions of the state, the signatures of 5% of the number of

persons voting in the last election for offices within the particular

subdivision were required. That this distinction does not facially

demonstrate blatant discrimination is plain given that in most

subdivisions of a state, 5% of the voters in a particular subdivision

election would represent far fewer than 25,000 signatures. The Court

recognized ‘‘[t}hat the distinction between state and city elections

undoubtedly is valid for some purposes’’ but that this fact did ‘‘not

resolve whether it is valid as applied here.’’ Id. at 184.

The Court found that the distinction, ‘‘as applied in the City of

Chicago,’’ id. at 183, produced the incongruous result that a new

party or an independent candidate for mayor of Chicago need obtain

substantially more than the 25,000 signatures required for a statewide

office. Because Chicago is such a populous subdivision, 5% of the

voters at previous Chicago elections exceeded 25,000. Finding no

compelling interest advanced to justify the apparent anomaly, the

Court did not strike down the statute as invalid on its face but limited

its holding to the City of Chicago. /d. at 187.

48

which they may be drawn, there will arise the inevitable

question for judgment: in the context of California

politics, could a reasonably diligent independent candi-

date be expected to satisfy the signature requirements, or

will it be only rarely that the unaffiliated candidate will

succeed in getting on the ballot?

Storer v. Brown, 415 U.S. 724, 742 (1974). See also Mandel v.

Bradley, 432 U.S. 173, 177-78 (1977).

Placing the passage in its proper context, the Court simply

cannot accept the defendant’s novel theory that this passage

propounds a new standard of review in ballot access cases.°

6

In Storer, four independents sought access to the ballot, two for the

United States Congress and two for the national offices of President

and Vice President. All four challenged provisions of the California

Elections Code forbidding ballot position to an independent if he

voted in the preceding primary, had a registered affiliation with a

qualified political party within one year prior to the last primary, or

obtained signatures of less than 5% of the vote cast in the last general

election. All signatures were required to be obtained in a 24-day

period and none could be those of voters at the primary. Storer v.

Brown, 415 U.S. 724, 726-27 (1974).

In Part I of the opinion, the Court found that both men seeking

congressional office were disqualified by their affiliation with a

political party within the preceding year. Applying the test set forth in

Williams v. Rhodes, the Court concluded the disaffiliation require-

ment served a compelling state interest. Storer v. Brown, supra, 415

U.S. at 736. See infra. Finding these candidates validly barred, the

Court found no need to examine the other challenged provisions as

applied to them.

In Part II, the Court addressed the challenges of the presidential

hopefuls to the signature provisions requiring at least 5% of the prior

vote cast to be gathered in 24 days from persons who had not voted in

the primary. Attempting to apply an equal protection balancing

analysis, the Court found itself unable to ascertain the precise impact

of the laws, a finding crucial to the determination of whether they

were necessary means to a legitimate end. In order to determine the

extent of the burden imposed by the 5% requirement, it was necessary

to know how many votes were cast in the preceding election. In order

to know whether that number could reasonably be obtained from

persons not voting in the primary, it was necessary to know how many

persons voted in the primary. Only then could the Court ‘‘assess

realistically’’ the impact of the law on prospective candidates. Storer

v. Brown, supra, 415 U.S. at 738.

(footnote continued on next page)

49

The passage relates to a claim that the statutory requirement

that independent candidates obtain a given percentage of

signatures within a°24-day period unfairly excluded indepen-

dents from the ballot.

The test stated by the Supreme Court in Storer is a guide for

determining the facts relevant to the legal questions raised by

the petitioners in Storer. Obviously, one cannot balance

considerations whose relative weight is unknown. It was

necessary for the trial court to apply the test stated by the

Supreme Court in Storer to arrive at the facts necessary to

apply the standard established by other cases.

Third, the Storer test is inapplicable to the facts of the case

at bar. Anderson does not claim that the filing deadline or any

other Ohio law places an onerous burden on him to gather

sufficient signatures to show substantial community support.’

Accordingly, the Court remanded the case for further factfinding.

Before doing so, however, the Court resolved three issues to clarify

the guidelines for further proceedings in the district court. The first

concerned the validity of disqualifying persons voting in the primary

from signing an independent’s petition. The second voiced the Court’s

concern that the disqualification of such persons who voted in a

nonpartisan primary may not have been supported by a compelling

state interest. The third is the passage quoted above, stating the test to

be applied once the facts were found regarding the number of

signatures required.

7 The defendant urges that the Supreme Court’s decision in Mandel

v. Bradley, 432 U.S. 173 (1977) is factually analogous to the case

before the Court because it concerned an early filing date with no time

limit for gathering signatures. In Bradley, the Supreme Court

criticized the lower court for construing its summary affirmance in

another case, Tucker v. Salera, 424 U.S. 959 (1976), aff’g 399 F.Supp.

1258 (E.D. Pa. 1975), as controlling precedent for the broad

proposition that early filing dates were unconstitutionally burdensome

on an independent’s access to the ballot. Bradley, supra, 432 U.S. at

175. The Court distinguished Sa/era from Bradley on the grounds that

in addition to the early filing date in Salera there was also a limited

time period for gathering signatures, which increased the difficulty of

meeting the signature requirements. Jd. at 177. As it had done in

Storer, the Supreme Court remanded the Bradley case for further

factual inquiry, instructing the district court to undertake the Ssorer

inquiry into the ability of a reasonably diligent candidate to satisfy the

ballot access requirements. Reading Bradley liberaliy, one may argue

50

The facts submitted by the parties show that Anderson

supporters gathered more than three times the number of

required signatures in Ohio within a five-day period. There

can be no question that Anderson was ‘‘reasonably diligent’’

in satisfying Ohio’s minimal signature requirements once he

decided to run as an independent.

The ‘‘reasonable diligence’’ of the candidate is simply not a

relevant consideration when the issue posed by the challenged

law is a filing deadline, for that deadline, in this case at least,

measures only the time that a candidate must reach a decision

about whether to run. See Mandel v. Bradley, 432 U.S. 173,

181-82 (1974) (Stevens, J., dissenting). Thus, as plaintiffs

noted in oral argument, a ‘‘reasonably diligent candidate’’

could meet the deadline within the meaning of Storer, and the

deadline could still be constitutionally unsound. For example,

if Ohio were to set the filing date in November of the year

preceding the general election and require only 100 signatures

to qualify for ballot placement, most candidates who had by

November decided to run for office would presumably be able

that it commands application of a Storer ‘‘reasonable diligence’’

factual inquiry to a challenge to an early filing deadline standing alone

and uncomplicated by signature-gathering requirements.

However, the Bradley case is distinguishable. Like Storer, the issues

concerned the State’s legitimate interest in requiring some showing of

community support and the extent of burdens imposed on a candidate

trying to demonstrate that support.

Mr. Bradley himself started quite early and attempted over a period

of months to acquire the necessary signatures by the March deadline.

Bradley submitted a few thousand more than the 51,755 signatures

required, but over 10,000 were thereafter invalidated and he was

disqualified. Bradley filed suit challenging both the deadline and the

signature requirement on the ground that the ‘‘early filing deadline

made it more difficult for Bradley to obtain the requisite number of

signatures than for a party member to win a primary . . . .’’ Mandel

v. Bradley, supra, 432 U.S. at 174. He placed in issue the effect of the

deadline in combination with the signature requirement to deprive him

of the opportunity to demonstrate his community support. In

erroneously assuming that the Supreme Court’s affirmance in Salera

mandated a holding that the filing date by itself was per se

unconstitutional, the District Court failed to undertake an indepen-

dent analysis of the interaction of the deadline with the signature

requirement. /d. at 178.

51

to acquire enough signatures, and defendant’s Storer-Bradley

*“‘threshold’’ test would apparently be satisfied. That fact,

however, would not preclude the Court from inquiring

whether the State has a compelling state interest in requiring a

potential candidate to commit himself so far in advance of the

general election.

What is at issue in this case is the State’s power to demand

that an independent candidate reach a decision about whether

to run months before a primary in which he does not take

part, and the State’s power to require this of him when it is

not required of all partisan candidates. I cannot accept the

defendant’s contention that the State may measure in terms of

Storer-Bradley ‘‘diligence’’ the time a candidate makes up his

mind to run for office.

Finally, the J/linois Board analysis states no new principles.

It merely applies principles enunciated in earlier cases. In a

case concerning the unconstitutionality of poll taxes, the

Supreme Court stated ‘‘that where fundamental rights and

liberties are asserted under the Equal Protection Clause,

classifications which might invade or restrain them must be

closely scrutinized and carefully confined.’’ Harper v. Virginia

Board of Elections, 383 U.S. 663 (1966).

This standard of review was translated into the language of

Illinois Board through a series of decisions concerning voting

and associational rights including Kramer v. Union School

District, 395 U.S. 621 (1969) (state apportionment statutes);

Dunn v. Blumstein, 405 U.S. 330 (1972) (durational residence

laws). Williams v. Rhodes, supra, confronted with the

unusually heavy burdens discussed above, applied the same

test:

In determining whether the State has power to place such

unequal burdens on minority groups where rights of this

kind are at stake, the decisions of this Court have

consistently held that ‘‘only a compelling state interest in

the regulation of a subject within the State’s constitu-

tional power to regulate can justify limiting First

Amendment freedoms.’’ NAACP v. Button, 371 U.S.

438 (1964).

52

Accordingly, the standard of review under the Equal

Protection Clause of R.C. 3513.257 must be whether it is

necessary to further a compelling state interest.

Compelling State Interests

Having found above that the filing deadline substantially

abridges First Amendment and fundamental rights of the

plaintiffs and discriminates between persons in many respects

similarly situated, the Court must determine whether it does so

in furtherance of compelling state interests.

First, it is important to note what state interests are nof in

issue in this case. The defendant does not contend that the

filing date of March 20 is necessary to permit the State a

certain period of time to perform the administrative tasks

necessary to place a candidate’s name on the ballot, such as

verifying signatures, resolving challenges, and printing ballots.

Certainly the State has a legitimate interest in requiring

candidates to file their papers in time to perform these

administrative matters. See, e.g., Salera v. Tucker, 399

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

the Secretary of State has conceded that the nominating

petitions filed on March 20 remain unprocessed in his office

until June 15, when he transmits them to county boards of

election. The boards do not begin actually verifying the

signatures until the period July 1 to July 15. Finally, the

Secretary of State does not certify the names of presidential

candidates (including independents) for inclusion on the ballot

until after the party nom: iating conventions, sometime in late

August. Based upon the stipulated facts, it appears that no

more than 75 days are necessary to perform these tasks. The

State’s interest, from an administrative standpoint, in an

orderly processing of names for inclusion on the ballot has not

been and cannot be asserted to justify a deadline 229 days

prior to the general election.

The Court will now turn to an analysis of the state interests

which defendant claims are promoted by the legislation in

issue. Chief among the interests asserted is the preservation of

53

the State’s political stability. Defendant relies heavily on Part I

of Storer v. Brown, supra, as support for this proposition. As

noted above, in Part I of Storer the Supreme Court dealt with

a challenge to several provisions of the California Elections

Code brought by two independent candidates for Congress.

These candidates challenged the Code’s ‘‘disaffiliation’’

provisions which prohibit a candidate from running as an

independent if he either voted in the immediately preceding

primary election or had a registered affiliation with a qualified

political party within one year prior to the immediately

preceding primary. The Supreme Court had ‘‘no hesitation’’

in sustaining this provision, finding that it advanced a

‘*general state policy aimed at maintaining the integrity of the

various routes to the ballot.’’ 415 U.S. at 733.

In reaching its decision in Storer the Court detailed the

nature of the California direct party primary system, the goals

of which the Court found were supported by the disaffiliation

requirements:

Section 6830(d) ... protects the direct primary

process by refusing to recognize independent candidates

who do not make early plans to leave a party and take

the alternative course to the ballot. It works against

independent candidacies prompted by short-range politi-

cal goals, pique, or personal quarrel. It is also a

substantial barrier to a party fielding an ‘‘independent’’

candidate to capture and bleed off votes in the general

election that might well go to another party.

* * * * *

It appears obvious to us that the one-year disaffiliation

provision furthers the State’s interest in the stability of its

political system. We also consider that interest as not

only permissible, but compelling and as outweighing the

interest the candidate and his supporters may have in

making a late rather than an early decision to seek

independent ballot status. Nor do we have reason for

concluding that the device California chose, § 6830(d)

54

(Supp. 1974), was not an essential part of its overall

mechanism to achieve its acceptable goals. 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 system 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 436-47 (footnote omitted).

From the above there can be no doubt that a state has, as

the defendant claims, a legitimate and compelling interest in

maintaining the stability of its political processes. The

defendant argues therefore that R.C. 3513.257 fosters this

interest in Ohio by in effect acting as a disaffiliation statute as

to Congressman Anderson. In other words, the defendant

claims that Anderson would have been able to meet the March

20 deadline if only he had decided at some point earlier than

March 20 to disaffiliate, and cease his activities in the

Republican state primaries.

Although the defendant’s argument has some surface

appeal, several points are clear. First, the statute gives

absolutely no indication on its face that it was intended to be a

disaffiliation provision. Indeed it is difficult to identify any

basis for so finding. R.C. 3513.257 would not bar the

staunchest party member who decided on March 19 to change

horses and file as an independent, for example, nor would it

permit a true independent to run, if he or she filed on March

21. Likewise, Anderson apparently could run in the other 49

states as a Republican, and R.C. 3513.257 would not bar him

from running as an independent in Ohio so long as he filed

here as such by March 20. Thus, unlike the California

provisions upheld in Storer, which were plainly drafted to

effect a comprehensive and nondiscriminatory disaffiliation

scheme, see, 415 U.S. at 733, it is clear that R.C. 3513.257

acts as a disaffiliation provision only by mere happenstance,

not by any reasonably discernible legislative design.

55

Second, even if the Court were to assume that the Act is a

disaffiliation provision, the defendant has not been persuasive

that the compelling state interest which the Supreme Court

found in the context of a statewide election in Part I of Storer

is equally compelling in an election for the national office of

President. Indeed, it is undisputed that California does not

even apply its disaffiliation laws to a presidential candidate.

Nor has the Court’s attention been drawn to any case in which

a State’s disaffiliation statute has been applied to such a

candidate. Thus when the defendant argues that the burden

placed on Congressman Anderson by R.C. 3513.257 is

minimal compared to the one-year disaffiliation requirement

exacted by California, he strains to force a national peg into a

state hole.

Finally, Ohio does have a disaffiliation statute of sorts in

R.C. 3513.04,* the so-called ‘‘sore loser’’ provision, which

prohibits a candidate from seeking a place on the general

election ballot by means of nominating petition or by write-in

when he has filed a declaration of candidacy for a party

nomination in the preceding primary. Because Anderson

withdrew from the Ohio primary in time to have his name

removed from the ballot, the State concedes that R.C. 3513.04

does not apply to him. Nevertheless, the defendant argues that

.R.C. 3513.04, when combined with R.C. 3513.257 here at

issue comprises a ‘‘comprehensive yet reasonable regulation’’

which serves to further the state interests recognized as valid in

Storer. This attempt to bootstrap R.C. 3513.257 into a

compelling interest is not convincing. Again, the mere

coincidence of the facts that a filing deadline bars a candidate

from getting on the ballot as an independent and that the

candidate was formerly a partisan, hardly transforms the

deadline statute into a disaffiliation act. Further, the Court is

8 The defendant argues that R.C. 3513.04 is directed at barring party-

affiliated candidates who lost in the primary from running as

independents in the general election. While that is true, the statute

also bars them from running as partisans. See, State ex rel. Gottlieb v.

Sulligan, 175 Ohio St. 238 (1963).

56

not persuaded that R.C. 3513.257 and 3513.04 ‘‘dovetail’’ into

a reasonable and coordinated State scheme for promoting

political stability simply because both statutes may operate to

bar former partisans from running as independent candidates.

In short, the defendant has demonstrated no interest served

by the filing deadline other than its simple function as an

arbitrary point in time by which independent candidates must

officially throw their hats into the political ring.’ Nor can the

9

The defendants contend that this case is controlled by the Supreme

Court’s summary affirmance of the decision of Sweetenham vy.

Rhodes, decided together with Socialist Labor Party v. Rhodes, 318

F.Supp. 1262 (S.D. Ohio 1970) (three-judge court), aff’d sub nom.

Sweetenham v. Gilligan, 409 U.S. 942 (1972). The Court rejects the

defendant’s position.

The Supreme Court has repeatedly cautioned against attaching

broad precedential significance to summary affirmances. Lower courts

are bound by summary actions on the merits by the Supreme Court,

Hicks v. Miranda, 422 U.S. 332 (1975), but because a summary

affirmance affirms the judgment only and not the reasoning of the

lower court, Mandel v. Bradley, 432 U.S. 173, 176 (1977), its

precedential value is limited to the precise questions presented and

necessarily decided by it. /d.

A review of the opinion of the three-judge court in Sweetenham

reveals quite clearly that the constitutional issue here presented was

not necessarily decided in the summary affirmance of that judgment.

The entire analysis relative to the filing deadline appears at page 1273:

Plaintiffs allege that those parts of Sections 3513.257 and

3513.258, Ohio Revised Code, which require nominating petitions

to be filed ‘‘not later than 4:00 P.M. of the ninetieth day before

the first Tuesday after the first Monday in May immediately

preceding [the] general election’’ are unconstitutional.

The state has an interest in having persons who otherwise qualify

for ballot position officially become candidates at a designated time

prior to an election. In addition, the state may reasonably require

that all persons seeking elective office become officially declared

candidates on or before a certain date preceding an election. One

may not play dog in a political manger by withholding his

determination of candidacy until after party candidates are chosen

by the primary process.

The plaintiffs Sweetenham and Stapleton herein had not taken

steps to become candidates prior to the May 1970 primary election.

Plaintiff Sweetenham had obtained 1,600 signatures on her

nominating petition by June 29, 1970. Plaintiff Stapleton had

obtained 2,455 signatures on his nominating petition by June 29,

1970. Neither plaintiff has filed or tendered a nominating petition

57

Court discern any aspect of the nature of independent versus

partisan candidacies to justify compelling independents, and

not all partisans, to commit themselves to their candidacy on

March 20. Indeed, the functional dissimilarities would appear

to counsel against requiring this of independents who do not

participate in the primary contest. Defendant has advanced no

compelling interest to support the difference in treatment

accorded by the Ohio law.

Defendant argues that the State certainly must set some

deadline for filing by independent candidates, and that under

Article II, § 1 of the United States Constitution,'® the State

legislature is given broad discretion to direct how and when

this may be done. Ohio made a similar argument to the

Supreme Court in 1968. The answer of the Court there, in

Williams v. Rhodes, supra, is equally applicable here:

with the designated state or county official. Candidates for parties

which participated in the primary election were chosen in the May

1970 primary election. The Socialist Labor Party candidates whom

this Court has held are entitled to ballot position were chosen on

April 26, 1970.

The Court holds that plaintiffs Sweetenham and Stapleton, who

did not officially declare their candidacy at or before the time Ohio

requires political parties to choose their nominees, are not entitled

to ballot position.

The judgment in Sweefenham rests on the failure of the challenging

plaintiffs to allege a real and immediate injury presenting a case or

controversy within Article III of the United States Constitution that

would be capable of adjudication by the district court. Having failed

even to tender a nominating petition, neither Sweetenham nor

Stapleton were in a position to place in issue a deadline regulating the

time for filing those petitions.

The Court, in fact, never reached the constitutional issue and

certainly did not decide it. Its discussion of the State’s interest in

having candidates declare their candidacies by a specific date before

an election reflects the Court’s concern that the plaintiffs in that case

had not taken any steps to qualify themselves as candidates at or

before the party candidates were chosen.

For these reasons the Court believes its Sweetenham decision is of

no precedential effect on the central issues decided herein.

10 The relevant clause provides in pertinent part, ‘‘Each State shall

appoint, in such Manner as the Legislature thereof may direct, a

Number of Electors . . .’’ to choose a President and Vice President.

58

There, of course, can be no question but that [Art. II,

§ 1] does grant extensive power to the States to pass laws

regulating the selection of electors. But the Constitution

is filled with provisions that grant Congress or the State

specific power to legislate in certain areas. These granted

powers are always subject to the limitation that they may

not be exercised in a way that violates other specific

provisions of the Constitution. .... Obviously we

must reject the notion that Art. II, § 1, gives the States

power to impose burdens on the right to vote, where such

burdens are expressly prohibited in other constitutional

provisions. We therefore hold that no State can pass a

law regulating elections that violates the Fourteenth

Amendment’s command that ‘‘No State shall . . . deny

to any person . . . the equal protection of the laws.’’

393 U.S. at 29. Nor can it be doubted that the State

legislature’s discretion in fixing a filing deadline must be

bounded by the First Amendment rights of candidates and

voters. Where a deadline acts to impede these rights the Court

must perforce analyze the State’s interest in imposing such a

limitation on important constitutional rights.

In Rosario v. Rockefeller, 410 U.S. 752 (1973) the Court

upheld the constitutionality of a New York statute which

requires a voter to enroll in the party of his choice at least 30

days before the general election in order to vote in the next

party primary. The effect of that statute is to require party

registration some eight months before a presidential primary

and eleven months before a nonpresidential one. The

petitioners claimed that the statute unduly burdened their First

and Fourteenth Amendment rights to exercise the franchise

and to associate with the political party of their choice. The

Court framed the issue as follows:

The only remaining question, then, is whether the time

limitation imposed by § 186 is so severe as itself to

constitute an unconstitutionally onerous burden on the

petitioners’ exercise of the franchise or on their freedom

59

of political association. As the dissent acknowledges, the

State is certainly justified in imposing some reasonable

cutoff point for registration or party enrollment, which

citizens must meet in order to participate in the next

election. . . . Hence, our inquiry must be whether the

particular deadline before us here is so justified.

* * * * *

It is true that the period between the enrollment

deadline and the next primary election is lengthy. But

that period is not an arbitrary time limit unconnected to

any important state goal.

410 U.S. at 760. The Rosario Court found that the burden

imposed by the New York statute was justified because it

served the important state goal of ‘‘preserving the integrity of

the electoral process,’’ 410 U.S. at 761, by inhibiting party

‘‘raiding.’’ The four-justice dissent argued that the asserted

stated interest was ‘‘hardly substantial enough’’ to justify the

impediment raised by the statute. 410 U.S. at 769.

In the Court’s view the present case is readily distinguish-

able from Rosario simply because the filing deadline imposed

upon independent presidential candidates by R.C. 3513.257

serves no compensating state interest such as that found in

Rosario. As already noted, the only justification seriously

raised by the defendant is that of political stability, a

justification which the Court has found to be tenuous at best.

Even if the statute in fact served such a legitimate purpose, it

would have to do so in a manner which avoids unnecessary

restrictions on constitutional freedoms since ‘‘[s]tatutes

affecting constitutional rights must be drawn with ‘precision,’

... and must be ‘tailored’ to serve their legitimate

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

The Court will now turn to this inquiry.

In 1976 this Court heard a challenge to another provision of

Ohio’s election laws, R.C. 3513.191, which prohibited a

person from running as a party candidate in a primary election

if he had voted as a member of a different political party

60

within the preceding four years. Kay v. Brown, 474 F. Supp.

588 (S.D. Ohio 1976) (three-judge court). There the State

claimed that the statute implemented a number of compelling

interests, including the preclusion of political candicacies

prompted by short-range goals, ensuring party loyalty, and

ensuring that candidates did not affiliate with political parties

for ‘‘opportunistic reasons.’’ Jd. at 593. Recognizing that

these goals were legitimate ones, this Court nevertheless found

that the statute by which the State purported to advance these

goals was impermissibly broad, as applied to the particular

plaintiff in the case, since it in effect locked him into a

political party which in fact had become defunct. The Court

there reminded this defendant’s predecessor of the Supreme

Court’s admonition that ‘‘[p]recision of regulation must be the

touchstone in an area so closely touching our most precious

freedoms.’’ Jd., quoting from NAACP vy. Button, 371 U.S.

415, 438, and that

[i]f the State has open to it a less drastic way of satisfying

its legitimate interests, it may not choose a legislative

scheme that broadly stifles the exercise of fundamental

personal liberties.

Id., quoting from Kusper v. Pontikes, supra, 414 U.S. at 59.

The Supreme Court reiterated this important theme most

recently in J/linois Board, supra:

[O]Jur previous opinions have also emphasized that ‘‘even

when pursuing a legitimate interest, a State may not

choose means that unnecessarily restrict constitutionally

protected liberty . . . and we have required that States

adopt the least drastic means to achieve their ends... .

This requirement is particularly important where restric-

tions on access to the ballot are involved.

440 U.S. at 185 (citations omitted). See also McCarthy v.

Austin, 423 F. Supp. 990, 997 (W.D. Mich. 1976).

In the Court’s view, R.C. 3513.257 fails the test of precision

which it so clearly is required to pass under the doctrine set

61

forth above. The State has advanced no compelling reason for

requiring an independent candidate to meet a filing deadline

75 days before a primary election in which he does not

participate, and which is some 229 days before the general

election.

The State argues that because partisan candidates are

required to file at the same time as independents, the early

deadline is justified because it treats all candidates ‘‘equally.’’

Again, the superficial appeal of this argument fails under

scrutiny. First of all, the deadline, set 75 days before the

primary election, is arguably a reasonable one for the

candidates who decide to run in that race. However, the Court

cannot find any legitimate state interest in tying ‘an

independent candidate to that deadline.

The defendant claims that permitting an independent to

declare later than party candidates would allow the indepen-

dent to play ‘‘dog in a political manger’’ by withholding his

candidacy until after party candidates are chosen in the

primaries. Even assuming that this apprehension has some

foundation in a statewide election, see, e.g., Sweetenham v.

Rhodes, 318 F. Supp. 1262, 1273 (S.D. Ohio 1970), which the

Court need noi now decide, such concern is substantially

diminished in a national election where the party candidates

are not chosen until July or August and where all candidates

must respond to national, not just state, issues. In any event,

the Court is not persuaded that the states have a compelling

interest in preventing candidates as early as March 21 from

emerging and declaring in response to important newly-arising

issues, particularly when such candidates may well reflect the

conscience of a substantial number of voters. Of course in the

context of a presidential election the political parties have an

opportunity to respond to such shifting and emerging national

issues after the State’s filing deadline because they do not

name their candidate or establish the party platform until the

conventions in late summer.

The Court does not quarrel with the proposition that states

generally have an important interest in maintaining their

ballots within manageable and understandable limits:

62

A procedure inviting or permitting every citizen to

present himself to the voters on the ballot without some

means of measuring the seriousness of the candidates’

desire and motivation would make rational voter choices

more difficult because of the size of the ballot and hence

would tend to impede the electoral process. That no

device can be conjured to eliminate every frivolous

candidacy does not undermine the State’s effort to

eliminate as many such as possible.

Lubin v. Panish, supra, 415 U.S. at 715. Equally important,

however, is the concern that access to the ballot of ‘‘serious’’

candidates not be unduly restricted. A State must strike a

balance between its interest in maintaining a manageable

ballot and its duty to provide access thereto for serious

candidates:

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.

This legitimate state interest, however, must be

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. The

interests involved are not merely those of parties or

individual candidates; the voters can assert their prefer-

ences only through candidates or parties or both and it is

this broad interest that must be weighed in the balance.

The right of a party or an individual to a place on a

ballot is entitled to protection and is intertwined with the

rights of voters.

Id. at 715-716.

63

From the above perspective, Ohio’s system for regulating

ballot access is less than a model of precision. The State’s

extremely lenient signature requirements allow ready access to

the general election by virtually any candidate seeking a place

thereon, yet its early filing deadline can have the effect, as it

does here, of arbitrarily interdicting the access of a candidate

with undisputed wide community support.

It appears that the State could more effectively strike the

required balance by screening the ‘‘frivolous’’ independent

candidates for President by, for example, gauging their

community support with stricter nominating signature require-

ments and then moving the filing deadline to a date closer to

the general election, thereby making less drastic the present

bar to the ballot erected by R.C. 3513.257. Such an alteration

is of course a matter for the Ohio legislature and not this

Court. What is for this Court, however, is the decision

whether the deadline set by R.C. 3513.257, as applied to

independent candidates for President, passes constitutional

muster. Because I find, as detailed above, that the impediment

set in the path to the ballot of such candidates by R.C.

3513.257 is unduly restrictive and not justified by any

compelling state interest, the statute is constitutionally infirm.

Conclusion

In conclusion, the Court holds that R.C. 3513.257

substantially abridges the constitutional rights of association

of Anderson and his supporters and the fundamental right to

vote of his supporters. It also discriminates against indepen-

dent candidates and in favor of partisan candidates. Neither

the abridgment nor the discrimination are justified by

compelling state interests.

It is-mot the prerogative for this Court to establish a

particular filing date which in its judgment would pass

constitutional muster. That is a decision for the Ohio General

Assembly in the first instance. The Court merely holds that

the filing date of March 20, or 75 days before the June

64

primary, is too early in the election year to be justified by a

compelling state interest and to be the least restrictive means

to achieve the interests it purportedly does serve. Under the

circumstances, the Court will grant the plaintiffs the relief they

seek and leave to the Ohio legislature the task of establishing a

date which serves compelling interests without unnecessarily

restricting constitutionally protected liberty.

65

ORDER OF DISTRICT COURT

(annexed to Opinion)

ORDER

The motion for summary judgment of defendant Anthony

J. Celebrezze, Jr. is DENIED; the motion for preliminary

injunction of the plaintiffs is now moot and is therefore

DENIED; and plaintiffs’ motion for summary judgment is

GRANTED.

It is ADJUDGED and DECREED that R.C. 3513.257, as

applied to plaintiffs Anderson and Hetrick, is violative of

plaintiffs’ rights to political association under the First and

Fourteenth Amendments to the United States Constitution,

and is violative of plaintiffs’ rights to equal protection under

the Fourteenth Amendment to the United States Constitution.

The Clerk of Courts shall enter judgment for the plaintiffs.

It is hereby ORDERED that the defendant Secretary of

State accept and process the plaintiffs’ petition and other

documents as if timely filed under R.C. 3513.257. It is further

ORDERED that the defendant cause Anderson’s name to

appear on the Ohio ballot in the November 4, 198¢,

presidential general election, if aside from R.C. 3513.257 he

has otherwise met the requirements of Ohio’s election laws.

/s/ Rospert M. DUNCAN

Robert M. Duncan, Judge

United States District Court

66

Appendix to Opinion

IN THE

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Civil Action No. C-2-80-400

JUDGE DUNCAN

>

JOHN B. ANDERSON, ef al.,

2711 Highcrest Road

Rockford, Illinois 61107

Plaintiffs,

v.

ANTHONY J. CELEBREZZE, JR., in his official capacity as

Secretary of State of the State of Ohio,

30 East Broad Street

Columbus, Ohio 43215,

Defendant.

>

JOINT STIPULATION OF FACT

The parties agree, by and through their counsel, that the

following facts are stipulated to be true and correct, for the

purposes and only for the purposes of this case,' but the

parties reserve all objections on the grounds of relevancy.

1 Some of the facts contained in this stipulation are in the peculiar

knowledge of one party and have been provided to the other party; in

these instances, the other party may have no independent knowledge

of such facts but is agreeing not to contest them for the purposes of

67

1. John B. Anderson seeks to run as an independent

candidate for President of the United States in the 1980

general election and meets the qualifications prescribed in the

Constitution for election to that office.

2. George H. Hetrick is a duly registered voter in the State

of Ohio who has been designated to seek certification as a

candidate for Presidential elector in the 1980 general election

pledged to the candidacy of plaintiff Anderson. His name was

included on a slate of candidates for Presidential electors,

pledged to support the independent candidacy of plaintiff

Anderson, tendered to defendant Celebrezze on May 16, 1980.

Plaintiff Hetrick meets the qualifications prescribed in the

Constitution for election to the office of elector.

3. Leslie Laufman, M.D., is a duly registered voter in the

State of Ohio who wishes to cast her vote in the 1980 general

election for the slate of electors pledged to plaintiff.Aderson.

4. Gerald M. Eisenstat is a duly registered voter in the

State of New Jersey, in which plaintiff Anderson’s name has

already been certified to appear on the ballot in the 1980

general election as an independent candidate for President of

the United States. Plaintiff Eisenstat intends to cast his vote in

the 1980 general election for the slate of electors pledged to

plaintiff Anderson in New Jersey.

5. Defendant Anthony J. Celebrezze, Jr., is the Secretary

of State of the State of Ohio. As such, he is charged by law

with responsibility for the administration of elections in Ohio,

including the procedures by which, among other things (i)

nominating petitions filed by independent candidates for

President and Vice-President are received by the State of Ohio

this action. For example, many of the facts describing the Anderson

candidacy are not within the independent knowledge of the Secretary

of State; they are, however, taken substantially verbatim from facts

admitted into evidence in the record by a federal court judge at a trial

conducted on June 6, 1980, Anderson, et al. v. Bolger, et al., Civil

Action No. 30-0340, E.D. N.Y.

68

and transmitted to the appropriate county Boards of Election

of the State of Ohio for verification of the signatures

contained therein, and (ii) the names of independent

candidates who have been duly nominated for the offices of

President and Vice-President are certified to all county Boards

of Election for inclusion on the official ballot in the general

election.

6. On April 24, 1980, plaintiff Anderson publicly an-

nounced his intention to pursue an independent candidacy for

the office of President of the United States. At the same time,

he publicly renounced his previously declared intention to seek

the Republican Party’s nomination for that office, although

Stating that he would remain a member of the Republican

party, and filed with defendant Celebrezze a Notice of

Withdrawal of Consent which resulted in his name being

removed from the ballot of the Ohio Republican Party

primary scheduled to be held on June 3, 1980.

7. The listing of plaintiff Anderson’s name on the 1980

general election ballot will not be barred by the provisions set

forth in the last sentence of Ohio Revised Code Section

3513.04,

8. Following plaintiff Anderson’s announcement on April

24, supporters of his Presidential candidacy throughout the

United States began making efforts intended to place his name

as an independent candidate for President on the ballots of

every state of the union in the November, 1980 general

election.

9. Following plaintiff Anderson’s announcement, a group

of his supporters in Ohio began to secure the necessary

Signatures of registered Ohio voters to place plaintiff

Anderson’s name on the Ohio ballot in the 1980 general

election as an independent candidate for President. Between

May 10 and 15, 1980, supporters of plaintiff Anderson secured

approximately 16,000 signatures of persons purporting to be

Ohio registered voters. Under Ohio law, 5,000 valid signatures

are required.

69

10. On May 16, 1980, supporters of plaintiff Anderson

presented to the Secretary of State (i) a Statement of

Candidacy by plaintiff Anderson, (ii) Nominating Petitions

containing approximately 14,500 signatures of persons pur-

porting to be eligible Ohio voters, (iii) a full slate of

candidates for Presidential electors, including the name of

plaintiff Hetrick, pledged to support the candidacy of plaintiff

Anderson, and (iv) payment of $100 as filing fees for

candidates for President and Vice-President. All of the

materials described above in this paragraph which were

tendered to defendant on May 16, 1980, including a certificate

of candidacy bearing plaintiff Anderson’s original signature,

are contained in a box under seal dated June 7, 1980, and

initialed by counsel for the parties herein.

11. Plaintiff Anderson’s Statement of Candidacy and

Nominating Petition would have been accepted for filing but

for the fact that they were not filed within the time required

by Ohio Revised Code Section 3513.257.

12. Defendant Celebrezze, to whom the foregoing papers

were tendered, failed and refused to accept the Statement of

Candidacy, Nominating Petitions, slate of candidates for

Presidential Electors, and filing fees on the sole ground that

they were not timely filed under Section _ 513.257. At the time

the supporters of plaintiff Anderson tendered the papers, they

received a letter from the Secretary of State, a true, accurate,

and authentic copy of which is attached hereto as Exhibit

eg Pi

13. The results of several recent public opinion polls

conducted by nationally recognized polling organizations are

reported in the attached exhibits:

Exhibit B:

An ABC News-Harris Survey poll conducted during the

period April 26-30 which was broadcast on national

network television news and reported in many newspa-

pers;

70

Exhibit C:

A Yankelovich, Skelly and White, Inc. survey poll

conducted between May 14 and May 16, 1980 for TIME

Magazine which was published in the June 2, 1980

edition of Time and elsewhere;

Exhibit D:

A Field Poll, conducted in mid-May in California,

reported in the New York Times and elsewhere;

Exhibit E:

An Associated Press-ABC News ‘‘Exit Poll’? conducted

on June 3, 1980 in which major party voters who voted in

the primaries in Ohio, California and New Jersey were

interviewed as they left the polling place, reported on

ABC national network television news and on the AP

‘*A”’ wire;

Exhibit F:

A New York Post poll, conducted beginning May 17, and

reported in the New York Post on June 6, 1980.

14. During his campaign for the Republican party nomina-

tion for President, plaintiff Anderson qualified for federal

matching funds by raising the minimum required amount of

money ($2( ») in each of 10 states from the required number

of contributors. Prior to April 24, 1980, he raised a total of

$3,908,571 of private contributions, and $40,469 from duly

registered political action committees which, with matching

funds of $2,680,347, amounted to $6,629,387. Plaintiff

Anderson spent all but $307,000 of his federal matching

funds, which sum was returned to the Federal Election

Commission when he ended his Republican campaign. Prior to

April 24, Congressman Anderson was on the ballot in nine

Republican primaries where he received percentages of the

vote ranging from approximately 9% in Georgia and Florida

to approximately 31% in Massachusetts and 37% in Illinois.

71

In addition, he had an active campaign organization in a

number of states in which delegates were chosen other than by

primary. In total, he had acquired 55 delegates.

15. In addition to their efforts in Ohio, supporters of

plaintiff Anderson have, si

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