# Petition — Celebrezze v. Anderson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0204%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 448 U.S. 914 ## Text 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0204%3A1. Public record. Not legal advice.