Appendix — Libertarian Party of Louisiana v. Brown

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BY-1IGLE 3

MAR 12 1924

No. ALEXANDER L. STEVasS

CLERK

——

In The

Supreme Court of the United States

OcTOBER TERM, 1983

LIBERTARIAN PARTY OF LOUISIANA,

Petitioner,

VS.

JAMES H. BRowN, SECRETARY OF STATE FOR THE

STATE OF LOUISIANA, AND

EDWIN A. LOMBARD, CLERK OF THE CRIMINAL

DISTRICT COURT FOR THE PARISH OF

ORLEANS, STATE OF LOUISIANA,

Respondents.

APPENDIX TO PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT

MICHAEL S. WOLF

Middleton and Wolf

300 Louisiana Ave., Suite 102

P.O. Box 3094

Baton Rouge, Louisiana 70821

(504) 346-0499

Counsel for Petitioner,

Libertarian Party

of Louisiana

1e4 pr

TABLE OF CONTENTS - APPENDIX

Henry T. Dart and the Libertarian

Party of Louisiana v. James H. Brown,

Secretary of State for the State of

Louisiana, et al., No. 82-3146

17 F.2d 1491 th Cir. 1983)

SLIP OPINION 2. ccccccccccccccccccccccs 1

Henry T. Dart and the Libertarian

Party of Louisiana v. James H. Brown,

Secretery of State for the State of

Louisiana, et al., No. 82-96 "C"

$31 F.Supp. 135 (E.D. La. 1982)

MEMORANDUM OPINION AND JUDGMENT ....... 76

Henry T. Dart and the Libertarian

Party of Louisiana v. James H. Brown,

Secretary of State for the State of

Louisiana, et al., No. 82-3146

(Cth Cir. Dec. 12, 1983)

ON PETITION FOR REHEARING ............. 93

Blomquist v. Thomson, No C83-0318-B,

F.Supp. (D. Wyo. Feb. 17, 1984)

ORDER ON MOTIONS FOR SUMMARY JUDGMENT... $4

Reagan v. Kansas, No. 82-4083

(D. Kan. June 16, 1982)

MEMORANDUM AND ORDER ..........000eee0> 129

Pn,

LOU'SIANA STATUTES INVOLVED ............. 147

NEW PARTY BALLOT ACCESS LAWS

IN THE UNITED STATES ..........2eeee00- 158

Henry T. Dart and the Libertarian

Party of Louisiana,

Plaintiffs-Appellants,

James H. BROWN, Secretary of State

for the State of Louisiana, et al.,

Defendants-Appellees.

No. 82-3146.

United States Court of Appeals,

Fifth Circuit.

Oct. 24, 1983.

Appeal from the United States District

Court for the Eastern District cf Louisiana.

Before TUTTLE’, POLITZ and GARWOOD, Circuit

Judges.

GARWOOD, Circuit Judge:

Appellants, Henry T. Dart and the

Libertarian Party of Louisiana, brought this

suit seeking both injunctive relief and a

declaration that certain sections of the

Louisiana Election Code were uncon-

titutional. Finding that the Code sections in

*Circuit Judge of the Eleventh Circuit, sit-

ting by designation.

question, restricting the notation on the

ballot of a candidate's affiliation with an

"unrecognized" political party, were consti-

tutional, the district court, following a

bench trial, granted judgment for the defen-

dants. We affirm.

On December 18, 1981, Henry T. Dart, a

registered member of the Libertarian Party of

Louisiana, qualified to run for election to

the New Orleans City Council, District B. The

preprinted notice of candidacy form, prepared

by the office of James Brown, the Secretary of

State, contains three boxes concerning party

affiliation, one of which the candidate must

check. After the phrase, "I am," the candi-

date must check the box labeled "a member of

the Democratic Party," the box labeled "a

member of the Republican Party," or the last

box, labeled "not affiliated with a recognized

political party." Dart checked the box indi-

cating that he was not affiliated with either

recognized party (Democratic and Republican),

and ther typed in "Libertarian Party" next to

that box. On December 21, 1981, Edwin

Lombard, Clerk of the Criminal District Court

for the Parish of Orleans, certified to Brown

the candidates qualified for election. Dart

was among them.

The certification form which Lombard

submitted to Brown listed the political affil-

iation of each of the five candidates for the

office in question, except Dart, as

Democrat. Next to Dart's name was "NP," sig-

nifying that Dart was affiliated with no

"recognized" party.

Dart wrote to Brown and Lombard on January

4, 1982, and demanded that the designation

"Libertarian Party" be placed after his name

on the City Council election ballot. Melvin

Bellar, Legal Counsel for ‘the Office of the

Secretary of State, responded on January 7,

1982, that because the Libertarian Party was

not a “recognized political party" as defined

in LSA-R.S. 18:441, Brown was not authorized,

under LSA-R.S. 18:551 D and E, to print Dart's

party designation on the ballot and did not

intend to do so.

On January ll, 1982, Dart and the

Libertarian Party filed this lawsuit against

Brown and Lombard under 42 U.S.C. § 1983.!

The appellants alleged that LSA-R.S. 18:441,

18:551 D, and 18:551 E violated the First and

Fourteenth Amendments to the United States

Constitution, and article 1, section 3, of the

Louisiana Constitution. 2 Dart and the

lappellee Lanmbard, Clerk of the Criminal District

ourt for the Parish of Orleans, asserts that the

istrict court should have granted his Fed.R.Civ.P.

2(b)(6) motion to dismiss the action against him for

ailure to state a claim upon which relief could be

ranted. He alleges that because the Secretary of

tate prepares and certifies the ballots, LSA-R.S.

8:551(A), the Clerk cannot be responsible for their

rganization and camposition. Because Lambard failed,

owever, to file a cross-appeal on this issue, we are

ot at liberty to consider it. Champagne 4; Chevron,

»S.A., Inc., 605 F.2d 934, 936 (5th Cir.1979).

2The equal protection clause of the Louisiana

Constitution, article 1, section 3, was intended to be

a restatement of the equal protection clause of the

United States Constitution. Our analysis of the

appellants' federal protection claims is similarly

applicable to the cause of action stated under the

State Constitution. Burmaster_v. Gravity Drainage

-4-

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Libertarian Party sought a declaration that

the statutes were unconstitutional, as well as

an injunction requiring the appellees’ to

either designate Dart's party affiliation

("Libertarian") on the ballot or remove ail

candidates' party affiliations from the bal-

lot. By consent of the parties, trial on the

merits was consolidated with the hearing on

preliminary injunction, and on January 29,

1982, the district court heard the case. On

February 3, 1982, the court entered judgment

denying the request for the preliminary in-

junction and dismissing the suit. In its

opinion filed the same day the court held that

the Louisiana statutes did not violate the

appellants' constitutional rights.?

District No. 2, 366 So.2d 1381, 1386 (La.1978).

341 though this election is history, the case brought

by Dart and the Libertarian Party is not moot. Because

the Louisiana Election Code will affect candidates and

parties in similar situations in future elections, this

case presents a controversy "capable of repetition, yet

evading review." Storer v. Brown, 415 U.S. 724, 737 n.

8, 94 S.Ct. 1274, 1282 n. 8, 39 L.Ed.2d 714 (1974)

~5-

THE LOUISIANA STATUTORY SCHEME AS APPLIED TO

APELLANTS

It is widisputed that Dart qualified to run

in the February 6, 1982 New Orleans City

Council "primary" election, and that his name

was on the ballot in that election.

That ballot, however, did not designate

Dart's political affiliation, although the

party affiliation of Dart's four opponents was

indicated by the word "Democrat," placed in

small type beneath each of their names. The

equivalent space under Dart's name on the

ballot was left blank. The ballot was pre-

pared in conformity with LSA-R.S. 18:551 D,

which provides:

"D. Political party designation. The

political party designation of a candi-

date who is registered as being affili-

ated with a recognized political party

shall be printed on the primary or gen-

(citing Rosario v. Rockefeller, 410 U.S. 752, 756 n. 5,

93 S.Ct. 1245, 1249 n. 5, 36 L.Ed.2d 1 (1973)).

Accord, Anderson v. Celebrezze, ----U.S. ----, ---- n.

3, 103 S.Ct. 1564, 1567 n. 3, 75 L.Ed.2d 547, 554-55 n.

3 (1983). The record does not show the results of the

election, although it is evident that the parties have

proceeded on the assumption that Dart lost and was not

a candidate in any general election for the position.

=-@-

eral election ballot on the same line

and immediately after or below the can-

didate's name. If a candidate is not

affiliated with a political party, the

space aiter his name shail be left

Blank (Emphasis added.)

Dart's political affiliation with the

Libertarian Party was not placed on the ballot

because the Libertarian Party was not then,

and is not now, a "recognized" party in

Louisiana.

Louisiana schedules elections for different

classes or groups of elective offices at dif-

ferent times, but for nearly all such offices,

other than presidential elector, there is a

"primary" election and, if necessary, also a

"general" election. §§ 401, 402, 1251, 1271,

1272. Louisiana has an "open" primary

system. The "primary" election is not a de-

vice for party nomination. Rather, there is

only a single primary election for each office

or group of offices, all qualified voters are

entitled to vote in it regrdless of their

party affiliations, and all qualified candi-

dates are eligible to appear on the ballot,

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regardless of party endorsement or affilia-

tion. § 401. Apart from general requirements

such as age or residence, a candidate quali-

fies to appear on the primary ballot merely by

timely filing a "notice of his eandidacy"

accompanied by either a filing fee or a nomin-

ating petition.4 Filing fees range from five

hundred dollars for candidates for governor,

4section 461 of the Louisiana Election Code

provides:

"A person who desires to become a candidate in a

primary election shall qualify as a candidate by timely

filing notice of his candidacy, which shall be

accampanied either by a nominating petition or by the

qualifying fee and any additional fee imposed. A

candidate whose notice of candidacy is accanpanied by a

nominating petition shall not be required to pay any

qualifying fee or any additional fee." Section 463 A

provides in part as follows:

"A (1) A notice of candidacy shall be in writing

and shall state the candidate's name; the office he

seeks; the address of his domicile; the parish, ward,

and precinct where he is registered to vote, and the

litical part if any, with which he is registered as

being affiliated. The candidate shall designate in the

notice the form in which his name shall be printed on

the ballot... “Blut he shall not designate a deceptive

name.... (Emphasis added. )

"(2) The notice of candidacy also shall include a

certificate, signed by the candidate, certifying that

he has read the notice of his candidacy ... and that

all of the statements contained in it are true and

correct...."

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three and four hundred dollars for other state

offices, and lesser amounts for local and

municipal offices. § 464.° Nominating peti-

tions are to be signed by registered voters in

a certain minimum number, ranging from five

thousand for all statewide candidates to les-

ser numbers for other offices. § 465 c.6 The

Dart qualified by paying the applicable $250 fee.

See § 464 B(3). Provision is also made for "additional

fees," not exceeding one half the amount of the regular

filing fee, to be levied, by and for the benefit of the

political party desiring to do so, on candidates

"affiliated" with that party. § 464 C. Neither the

regular filing fee, nor the "additional" fee, is in any

way at issue here.

Sin Dart's case the number would have been one

thousand, the figure applicable to municipal candidates

in cities with 300,000 or more residents. § 465 C(4)

(fewer signatures are required in less populous

cities). Other specified offices and their applicable

Signature requirements include: Congressman and State

Supreme Court Justices, 1,000; Court of Appeal

Justices, any officers elected throughout a judicial

district, and State Senators, 500; State

Representatives and any officers elected throughout a

parish, 400; any officer elected throughout a ward,

100. § 465 C(3). Offices not provided require one

half of one percent of the number of registered voters

in the area fran which elected. § 465 C(5). No filing

fee or additional filing fee is applicable to

candidates qualifying by nominating petition. § 461.

Signatures for nominating petitions for primary

elections must be gathered in the 120-day period next

preceding the opening of the qualifying period for the

registered party affiliation, if any, of the

voters signing the petition is irrevelant.”

A candidate receiving a majority of the

votes cast for the office at the primary elec-

tion is elected. § 511 a.8 If no one

candidate receives a majority, then the _ two

candidates for the office who received the

greatest number of votes at the primary

election appear on the subsequent’ general

candidates. § 465 B. The qualifying period lasts

approximately a week, and, depending on the character

of the election, closes (or at least did so during the

years 1978 through 1982) as little as six or seven

weeks, or as much as twelve or thirteen weeks, before

the election day. S§§ 402, 467, 468. For the February

6, 1982 New Orleans City Council election the candidate

qualifying period closed December 18, 1981. §§ 402 D,

467(4), 468.

The nominating petition requirements are not at

issue here.

7Al though the nominating petition must state, as to

the would-be candidate, "the political party with which

he is affiliated, if any," no such information is

required as to those signing the petition. § 465 D.

8special provision is made for calculation of

"majority" when the election is to fill "two or more

offices of the same character." § 511 A. And, if at

the end of the primary qualifying period no more

candidates for an office have qualified than the number

of persons to be elected thereto, those so qualifying

are declared elected and do not appear on the primary

ballot. §511 B.

-10-

election ballot, and the candidate who

receives the greatest number of votes in the

general election is elected. A general

election is held for an office only if no one

is elected to it as a result of the primary

election process, and the only candidates

appearing on the general election ballot are

those who "survived" the primary. §§481, 482,

551 C(2). The "general" election is thus

simply a "runoff" election between those

receiving the greatest number of votes in a

primary election in which no-~ candidate

received a majority. On both the primary and

general election ballots all candidates for a

given office are listed alphabetically by

surname in a vertical column headed by the

title of the office. § 551 c.9 Except for

the referenced designation of the registered

political party affiliation of candidates

As a consequence, Dart's name appeared first on the

primary ballot's listing of the five candidates for the

office of Councilman, District B, City of New Orleans.

-}l-

—————————————eeeVO

registered as affiliated with a recognized

party, "no information, designation or title

shall be printed on the ballot." § 551 E.10

Section 441 of the Louisiana Election Code

prescribes the requisites for recognition of a

political party:

"A political party shall be recognized

in this state if one of its candidates

for presidential elector received at

least five percent of the votes cast in

this state for presidential electors in

the last presidential election, or if at

least five percent of the registered

voters in the state are registered as

being affiliated with the political

party..."

10, minor exception is made respecting candidates

having the same surname, in which instance the

incumbent, if any, is designated as such, and if there

~ no incumbent, the address of each is given. § 55]

C(1).

Iseetion 441 concludes by stating:

"A party which receives more than five percent but

less than ten percent of the votes cast n the last

presidential election shall not be entitled to

representation on a parish board of election

supervisors."

This provision is not in issue here.

- 19

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Under Louisiana law there are thus_ two

routes by which a political party may become

recognized. Recognition may be achieved under

either. One route is for five percent of the

State's registered voters to be registered as

being affiliated with that party. When a

person registers to vote, his or her then

declared "political party affiliation," if

any, is entered in the voter registration

records. §§ 194 A(1l), 107 A. Registration

to vote occurs at the local parish level and

may be accomplished at any time, /2 though it

must normally be done in person. §§ 103, 131,

83a, E33. "An elector may change his party

affiliation by making application therefor in

writing to the registrar." = aes B. It

appears this may be done at any time. Voters

"may vote on candidates for public office in

primary and general elections without regard

1 2owever , only those who have "registered to vote"

thirty days or more before an election may vote in

it. §§ 521 A, 135 A.

-13-

to the voter's party affiliation or lack of

it, and all candidates for publie office who

qualify for a primary or general election may

be voted on without regard to the candidate's

party affiliation or lack of it." §401 p.13

Just when a party must have five percent of

the registered voters registered as affiliated

with it, in order to be a "recognized" party

for purposes of a given election, is not ex-

plicitly stated in the statutes. Presumably

this status could be achieved as late as the

close of the period for candidates to qualify

for the election in question. See note 6,

Supra. 14

1 SHowever , "candidates for membership on a political

party cammitee may only be voted on by voters who are

registered as being affiliated with the same political

party as the candidates," and a designation or change

of the voter's party affiliation is not effective for

such purpose until thirty days after being made. § 521

B. Further, in political party presidential preference

primaries (held in April of each presidential year by

parties with 40,000 or more registered voters,

principally to bind their national convention delegates

on the first presidential noamination ballot, §§

1280.21, 1280.27), "no elector may vote ... for a

candidate or slate affiliated with a party in which the

elector is not registered." § 1280.25.

» 34

The other route provided by Louisiana law

for political party recognition is that if one

of the party's candidates for presidential

elector received at least five percent of the

votes cast in the State for presidential elec-

tors at the last presidential election, the

party is "recognized." The candidates for

presidential elector selected by each recog-

nized political party, and the candidates for

president and vice president of such party,

are certified by the party to the Louisiana

Secretary of State and are automatically

placed on the ballot. §1253. Otherwise,

Slates of candidates for presidential elector

may be placed on the ballot either by a five

hundred dollar filing fee, or by a nominating

petition signed by five thousand qualified

voters, /5 paid to or filed with the Secretary

l4Rallots for primary elections are _ to. be

distributed by the Secretary of State twenty-two days

before the election. § 552 A.

No camplaint has been made respecting the time at

which the five percent of registered voters alternative

test is to be met.

= 18-

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of State during the period from the first

Tuesday in August to the first Tuesday in

September of the presidential election year.

See §§ 1254 and 465 C(1). See also Blanchard

v. Brown, 388 So.2d 865 (La. App. Ist Cir.),

writ denied, 386 So.2d 919 (La. 1980).!6

Apparently, a voter is not disqualified from

signing a nominating petition for presidential

electors by reason of being registered as

affiliated with 4 different political

party.!7 Nominating petitions state the names

of the electors, of the candidates for

1Spive thousand voters would be approximately one

quarter of one percent of the 1,942,941 voters who were

registered in Louisiana in 1981.

16The filing fee method was apparently that by which

the Libertarian Party candidates for president and vice

president, and eiector, got on the ballot in 1980. See

Blanchard v. Brown, supra.

171t is unclear whether the 120-day period for

collecting signatures applicable to primary election

nominating petitions, see note 6, supra, is also

applicable to nominating petitions for presidential

electors. In any event, no camplaint is made that it

is overly difficult for a "minor" party to get its

presidential and vice presidential and_ elector

candidates on the ballot.

=-16-

president and vice president whom they

support, and, in three words or less, the

political principle represented. 1254(C).

The presidential ballot lists the names of the

candidates for president and vice president

and, in smaller type, the names of the elector

candidates, identified as such. 1259 B.

Next to the names of the presidential and vice

presidential candidates appear the name and

emblem of their political parties, if

"recognized", or, "if nominated by a nominat-

ing petition, the political principal [sic]

which the candidates support, as stated on the

nominating petition, if any, and the words

"Nominating Petition'...." Id. The presiden-

tial candidates of recognized parties are

listed on the ballot alphabetically, "accord-

ing to the names of the parties, followed by

the names of the candidates nominated by

nominating petitions, listed a: phabetically by

designation of political principal [sic]."

14.18

-17-

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The testimony and exhibits. at trial

revealed that the Libertarian Party had not

met either of the requisites for

recognition. In 1980, the Libertarian Party

had run Ed Clark for President of the United

States, and he and his vice presidential can-

didate and supporting electors appeared on the

ballot in Louisiana. See note 18, supra. Had

Clark received five percent of the Louisiana

presidential vote, the Libertarian Party would

18it is unclear whether the statement of political

principle is listed on the presidential ballot in the

instance of candidates not of a recognized party who

appear on the ballot by paying a filing fee, rather

than by filing a nomination petition.

There is no direct evidence of the format of the

1980 presidential ballot. However, a copy of the

Secretary of State's 1980 presidential election

proclamation is in evidence; and, if its format is

similar to that of the ballot, it suggests that each of

the seven presidential (and vice _ presidential)

candidates was listed under his "party" name, the

"Democratic Party" being listed in the far left-hand

colum, the "Republican Party" next, and_ then,

continuing in order to the right: "Amer ican

Independent Party"; "Citizens Party"; "Independent";

"Libertarian"; and "Socialist Workers Party."

Appellants have made no camplaint, here or below, as to

the method of the Libertarian Party's listing on the

1980 presidential ballot, or the format of that ballot,

or the requirements for appearing thereon.

= 1@<-

——————————————————

;

have become recognized. According to the 1980

election figures, however, out of 1,548,591

votes cast, Ed Clark received 8,240 votes, or

approximately .53 percent of the vote, 4.47

percentage points short of the votes needed

for party recognition. 19 Only in one of

Louisiana's sixty-four parishes did Clark

receive as much as one percent of the total

presidential vote, and in that parish

(Lafourche) his 326 votes were less than one

and one-tenth percent of the total. Only in

one parish, Orleans, did he receive as many as

1,000 votes, and there his 1,015 votes were

less than six-tenths of one percent of the

191m the 1980 election Ronald Reagan, the Republican

candidate, received 792,853 votes, or approximately

51.2 percent of the votes. Jinmy Carter, the

Democratic candidate, received 708,453 votes, or

approximately 45.7 percent of the votes. John R.

Barick, presidential candidate for the American

Independent Party, received 10,333 votes, or

approximately .67 percent of the votes. Barry Cammoner

of the Citizen's Party received 1,584 votes, or .l

percent of the total votes cast. Running as an

independent, John B. Anderson received 26,345 votes, or

approximately 1.7 percent of the votes. And Louisiana

voters cast 783 votes, or .05 percent of the votes, for

Clifton DeBerry, of the Socialist Workers Party.

-19-

parish total. The record also reveals that at

the time of trial, the roster of the

Libertarian Party of Louisiana contained "at a

maximum" only 600 mames--names of "simply

people who are known to us as being interested

in the philosophy of the party" and who were

"not necessarily registered as

Libertarians."20 In 1981, Louisiana had

1,942,941 registered voters, five percent of

which is 97,147 voters. While there was no

evidence of the exact amount of Libertarian

registration either statewide or in any one

parish, it is evident that the Party was not

only vastly short of the five percent state-

wide total, but was also most significantly

below that percentage in every’ parish.

Indeed, the Libertarian Party did not claim to

have even as much as one percent of the voter

registration in any parish.2!

20The witness so testifying, called by the

Libertarian Party and a member of its Louisiana State

Central Committee, also stated that according to his

information "there are approximately 606 Libertarians"

in Louisiana.

-20-

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The Libertarian Party and Dart admit that

4lThe statewide September 1981 voter registration

statistics, broken down by parishes, which the

Libertarian party procured from the Secretary of

State's office and offered in evidence, showed total

registration, divided into Democrats, Republicans, and

"other," the latter category including all who

registered as affiliated with any party other than

Democratic or Republican as well as those who declared

no party affiliation. Testimony showed that the local

voting registrars kept totals on all the other declared

party registrations separately by party, and that the

Secretary of State was able to procure this information

from the local voting registrars on request, but that

the information was not routinely furnished to the

Secretary of State. The Director of Voter Registration

in the Secretary of State's office testified that he

had made a spot check of parishes having in total

approximately 600,000 registered voters, and that these

had less than one half of one percent registered

Libertarians (his testimony is sanewhat unclear in that

he also stated the total number of Libertarian

registrants found in these parishes was, so far as he

could remember, "about 80"; 80 would be about thirteen

one thousandths of one percent, .00013 expressed as a

fraction, of 600,000). Appellants admitted on oral

argument that the Libertarian Party's’ statewide

registration did not exceed 600. This would be three

one hundredths of one percent, or .0003 expressed as a

fraction, of the 1,942,941 total registration.

The statewide "other" registered voter category,

reflected by the above-referenced statistics, amounted

to 6.07 percent (.0607) of the total registered voters;

in only one of Louisiana's sixty-four parishes was it

as much as 10 percent (in St. Tammany Parish the 5,778

"other " registrants amounted to 10.7 percent of the

total); in forty of the parishes it was less than five

percent of the total; Orleans Parish, which had the

highest total registraton (237,499) likewise had the

highest number in the "other" category (16,047, or 6.8

percent).

- 9] ~

the Party is not "“recognized" under’ the

Louisiana Election Code. They contend,

however, that §§ 441 and 551 D and E violate

their equal protection rights. In this

regard, they challenge as impermissible the

distinction Louisiana has made between recog-

nized and nonrecognized parties by requiring

the Secretary of State to place on the ballot

the registered party affiliation of candidates

of recognized political parties, while forbid-

ding placement on the ballot of the party

affiliation of all other candidates, including

those registered as members of nonrecognized

parties. This distinction respecting whether

a candidate's party affiliation is listed on

the ballot is the only consequence of a

party's not being "recognized" of which appel-

lants make any complaint. 22

22anpellants also argue, as they did below, that the

State has made it impossible for the Libertarian Party

to achieve five percent voter registration because the

registrars refuse the requests of Libertarian voter

registrants to indicate their party affiliation on the

registration records. The only evidence offered in

= 99 ~

THE STANDARD OF REVIEW

support of this claim was the testimony of the witness

Brisbin who stated that this had once happened to him

when he registered to vote, at an unspecified time, in

Jefferson Parish. There is no evidence that this

incident was ever reported to anyone. This witness

also testified that "other members of the Libertarian

Perty ... had the same experience," but he did not say

how many were involved or when or where the incidents

occurred or whether they were ever reported; he then

admitted he was not present at any such incident

involving any other voter registrant, and was only

repeating what he had been told, and the district court

thereupon properly ruled this aspect of Brisbin's

testimony was inadmissible hearsay. The State Director

of Voter Registration, Bruder, testified he never heard

of any such incident as related by’ Brisbin, that

voters were not barred nor in any way restricted from

registering as affiliated with the Libertarian Party

and that he knew of no activities by election officials

which could impede State recognition of the Libertarian

Party. It is evident from the district court's opinion

that it credited Bruder's testimony, and its decision

to do so is not clearly erroneous. Fed.R.Civ.P.

52(a). Moreover, Brisbin's single claimed experience

in Jefferson Parish, occurring at some unspecified time

and not shown to have been reported to anyone, is

obviously an insufficient basis on which to strike down

the Louisiana statutory scheme for recognition of

political parties, assuming that scheme is otherwise

valid. Nor does such an incident serve as a basis for

setting aside the 1982 New Orleans City Council

election. Moreover, appellants did not request any

character of injunctive (or other) relief against any

Jefferson Parish officials to require them to canply

with the Louisiana Election Code, under the terms of

which any eligible voters desiring to do so are clearly

entitled to be registered as affiliated with the

Libertarian Party.

- 93 -

The primary error which appellants contend

that the district court made was in failing to

apply a strict scrutiny test to evaluate the

validity of the complained of Louisiana

Election Code provisions. The strict scrutiny

test requires that the challenged statute be

narrowly drawn to provide the least restric-

tive means of furthering a compelling state

interest. We have described it as "'strict'

in theory and usually '‘fatal' in fact."

Arceneaux v. Treen, 671 F.2d 128, 131 (5th

Cir.1982). The application of the test "has

been reserved for matters involving race,

religion, national origin and characteriza-

tions impinging upon ‘fundamental rights.'"

Seoane v. Ortho Pharmaceuticals, Ine., 660

F.2d 146, 149 (5th Cir.1981) (footnotes omit-

ted) (quoted in Arceneaux, 671 F.2d at

131). Dart and the Party urge that the dis-

tinction the State has made in allowing only

the party affiliations of candidates who are

members of recognized parties to be placed on

- 24-

mf Si > A }

- _ a ¢ ' i

= =) 7

on “ete aa, , 2. 0-8 a =—~-9

. ea 7 y= = De 7 on > :

"ta

= Vk Pehty series ital 2 ee 7s | ee. 7 .

ae aS een ah ee So 14ER 3 ‘tied,

aig

Tale: ane awed iene

ieee an oe i

the ballot impermissibly burdens First Amend-

ment rights that the Supreme Court has charac-

terized as fundamental--the right to vote and

the freedom of association.

In support of their position that any eval-

uation of the statutes before the Court calls

for the application of strict scrutiny, the

appellants cite several Supreme Court

decisions concerning election and ballot re-

strictions, beginning with Williams v. Rhodes,

393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968),

and concluding with Anderson v. Celebrezze, --

U.S. --, 103 S.Ct. 1564, 75 L.Ed.2d 547

(1983). See also Clementson Fashing, --- U.S.

---, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982);

Illinois State Board of Elections v. Socialist

Workers Party, 440 U.S. 173, 99 S.Ct. 983, 59

L.Ed.2d 230 (1979); Lubin v. Panish, 415 U.S.

709, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974);

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

39 L.Ed.2d 714 (1974); American Party vv.

White, 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d

-25-

744 (1974); Bullock v. Carter, 405 U.S. 134,

92 S.Ct. 849, 31 L.Ed.2d 92 (1972); Jenness v.

Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29

L.Ed.2d 554 (1971).

We reject appellants' contentions and hold

that the strict scrutiny test is

inapplicable. In the first place, a funda-

mental distinction exists between this case

and all the cited Supreme Court decisions. In

each of the cases before the Supreme Court the

state had prevented the names of the candi-

dates from even appearing on the ballot--cand-

idate ballot access was absolutely denied. In

Anderson the Supreme Court identified two

"basie constitutional rights," ---U.S. at---,

103 S.Ct. at 1568-69, 75 L.Ed.2d at 556,

burdened by ballot restrictions--"[t])he right

to vote is ‘heavily burdened' if that vote may

be cast only for major-party candidates" and

"[t]he exclusion of candidates also burdens

voters' freedom of association, because an

election campaign is an effective platform for

- 26 -

the expression of views ... and a candidate

serves as a rallying-oint for like-minded

eitisens.” te. === U.8. et --- 103 S.Ct. at

1569, 75 L.Ed.2d at 557 (footnoted omitted).

Neither interest is invaded in a case of this

kind--the voters had a full choice of candi-

dates, including Dart, and candidate Dart was

available as a rallying point and campaign

focus for Libertarians and other like-minded

citizens.

Dart seems to recognize that the State did

not restrict his access to the ballot. In-

stead, he and the Libertarian Party argue that

the Party was denied access to the ballot, and

hence application of the strict scrutiny test

promulgated in the ballot access cases is

mandated here.

We reject this argument. Although the

Supreme Court's ballot access cases have dis-

cussed, in part, the access of new political

parties to the ballot, the restrictions under

consideration described as denying access to

-27-

the parties have always ccncurrently denied

access to the parties' candidates.

The candidate is a vehicle for a party. He

or she represents the ideals of a group of

persons and is, once elected, the person whom

members of the group expect to implement their

political ideals and work toward their polit-

ical goals. If it had no candidate to offer,

a political party would neither seek nor gain

access to the ballot. The Libertarian Party

here offered its candidate, Henry Dart, whom

it supported for City Council. Although the

words "Libertarian Party” did not appear under

Dart's name, the Libertarian Party was not

denied access to the ballot. The ballot's

only significance was in electing

candidates. It was a candidate, not a party,

ballot. Any ballot slot to which the

Libertarian Party might have been entitled

would have been granted to it through its

candidate, Dart. As Dart was granted access

to the ballot, so was the Libertarian Party.

- 28 -

When a new party and its candidate are

denied access to the ballot, the party members

are denied the right to cast their votes for

the candidate whom they support. Because Dart:

was on the ballot, his supporters could vote

for him. Their fundamental right to cast

their votes effectively was not’ impaired.

Similarly, Libertarian Party members’ and

Dart's other supporters retained their freedom

to associate for the advancement of their

political beliefs, with candidate Dart, and

his campaign, available as a rallying point.

A major goal of a political party is to

elect a candidate who will further the party's

values and fortunes in the political arena.

When a party's candidate is on the ballot, the

party members' acts of associating and cam-

paigning for a candidate who will advance

their political beliefs are worthwhile. The

candidate's placement on the ballot is a

requisite for the party members to achieve

their goal of having their political thoughts

-29-

implemented. If elected, the candidate, as a

perticipant in government, will be able to

translate the party members' political beliefs

into political action. If the party has no

candidate on the ballot, the members' acts of

political association can be _ individually

enriching, but cannot directly serve the tan-

gible end of securing a representative voice

in government.

Since Dart was on the ballot, any political

associating which Libertarian Party members

and Dart's supporters did was directly related

to furthering a fundamental party and polit-

ical purpose--to get their candidate, Dart,

elected. The members were "wholly free to

associate, to proselytize, to speak, to write,

and to organize campaigns" in support of their

candidate and their political views. Jenness,

403 U.S. at 438, 91 S.Ct. at 1974. The claim

that the freedom of association of the

Libertarian Party members was significantly

burdened cannot be sustained.

- 30-

We recognize that our rejection of the

strict scrutiny test under these circumstances

may be ultimately inconsistent with’ the

approach taken by the Eighth Circuit in McLain

v. Meier, 637 F.2d 1159 (8th Cir. 1980).

There, strict scrutiny was apparently applied

to strike down North Dakota laws requiring a

petition with signatures of 15,000 registered

voters, approximately 3.3 percent of the state

total, to be filed ninety days before the

primary and 150 days before the general elec-

tion in order for the candidate of a party

which did not receive five percent of the vote

at the last gubernatorial general election to

be placed on the general election ballot.23

23The ultimate result in McLain is not necessarily

at varience with that reached here, as the substantive

analysis in McLain focusd on the cambination of the

early petition filing deadline and the "relatively high

signature requirement," id. at 1164, and stressed "the

importance of the interplay between the statutory

Signature requirement and the filing deadline..." Id.

at 1169. Indeed, the Court noted "that a relatively

high signature requirement may be constitutionally

acceptable when coupled with an opportunity to approach

voters for signatures at a date less remote from the

general election...." Id. Here, no timing camplaint

= $i -

In McLain the candidate plaintiff ultimately

qualified as an independent, and accordingly

in fact appeared on the ballot, but the Court

disregarded this circumstance, stating:

"We decline to find, as the State urges,

that the early filing deadline for third

party candidates is offset by a later

ing deadline for independent candi-

dates. A candidate who wishes to be a

party candidate should not be compelled

to adopt independent status in order to

participate in the electoral process.

As the Supreme Court has recognized,

‘the political party and the independent

candidate approaches to political

activity are entirely different and

neither is a satisfactory substitute for

the other.' Storer v. Brown, supra, 415

U.S. at 745, 94 S.Ct. at 1286. Id. at

1165 (footnote omitted).

However, unlike the California and North

Dakota election laws at issue in Storer and

is made in respect to the five percent of registered

voter alternative. In regard to the five percent of

votes at the last presidential election alternative,

while such a requirement might prove a timing problem

in a case like McLain (where the party in question was

not formed until the summer of 1978 and the election in

question was November 1978), here the Libertarian Party

fielded candidates for President and Vice President in

November 1980, and no claim is made of any substantial

relevant change between that time and the applicable

December 1981 qualification period. Further, McLain

also found discrimination against minor party

candidates in ballot position, id. at 1165-67, which is

not present here. beg

- 32-

McLain, Louisiana does not provide different

methods of ballot access for candidates

depending on their party affiliation or inde-

pendent status, nor do any candidates?4 run as

"nominees" of any parties. To secure a place

on the ballot, Dart had to do nothing not

required of any other candidate, and was cer-

tainly not "compelled to adopt independent

status."

In Storer, California, replying to the

assertion that the ballot access requirements

for independent candidates were overly burden-

some, contended that an independent candidate

could nevertheless secure a place on the

ballot by forming a new political party, meet-

ing what were claimed to be the less difficult

level of support requirements applicable in

such instance, and running as its nominee. It

was in rejecting this contention that Storer

employed the language relied on my McLain.

240ther than presidential electors, as to whom no

camplaint is made.

- 33 -

The Storer opinion went on to point out in

this connection that not only would the new

party route entail "undertaking the serious

responsibilities of qualified party status. .

- such as the conduct of a primary, holding

party conventions, and the promulgation of

party platforms," but that it would also in

effect require of the candidate, and his sup-

porters, "sacrificing" or "surrendering" their

"independent status." 415 U.S. at 745-46, 94

S.Ct. at 1286. The associational rights of

the independent candidate and his supporters

would be violated by forcing them to form and

act as a party, when the very essence of their

political philosophy might be antithetical to

political parties as_ such. No comparable

Situation is present under Louisiana law.

Lack of designation of a candidate's party

affiliation on the Louisiana ballot does not

designate the candidate as an independent or

as anything other than a candidate who has not

registered his affiliation with a political

- 34-

party which has either as many as five percent

of the State's registered voters or whose

presidential candidate received at least five

percent of the vote at the last presidential

election. Louisiana requires no "flying under

false colors."

The McLain Court premised its application

of the strict scrutiny test on the fact that

the North Dakota statutes at issue restricted

the "fundamental right to vote [which] is

inseparable from the right to place the candi-

date of one's choice on the ballot." Id. at

1163. However, as we have observed, the mem-

bers of the Libertarian Party, and other

supporters of Dart, were able to exercise

their right to vote for him and he was on the

ballot. There was no denial of the right to

have the candidate of one's choice on the

ballot or to vote for such candidate.

We have observed that the Supreme Court

decisions in this general area all deal with

Situations where the complaining candidates

-35-

have been denied access to the ballot, while

the case before us does not involve such a

denial, and is hence less suitable for appli-

cation of the strict scrutiny test. However,

even in cases where the challenged restric-

tions prevent the candidate from appearing on

the ballot, it is by no means clear that the

Supreme Court has uniformly applied a strict

scrutiny test.

Where the restrictions burden not only

candidate ballot access but also other import-

ant constitutionally protected rights, appli-

cation of the strict scrutiny test seems

clearest. This is illustrated by the filing

fee cases of Bullock v. Carter, 405 U.S. 134,

144, 92 S.Ct. 849, 856,31 L.Ed.2d 92 (1972)

(results of large filing fees "would fall more

heavily on the less affluent ... whose

favorites may be unable to pay the large costs

required ..."), and Lubin v. Panish, 415 U.S.

709, 716, 94 S.Ct. 1315, 1320, 39 L.Ed.2d 702

(1974) (filing fees cannot be a requirement

- 36-

for indigent candidates; "qualifying candi-

dates ... may not constitutionally be measured

solely in dollars"). Another illustration is

provided by cases where the ballot access

requirements are geographically discrimina-

tory. See, e.g., Moore v. Ogilvie, 394 U.S.

814, 819, 89 S.Ct. 1493, 1496, 23 L.Ed.2d 1

(1969) (invalidating nominating petition re-

quirement which "discriminates against’ the

residents of the most populous counties of

the State in favor of rural sections").

Similar considerations seem to have_ been

influential in Illinois State Board of

| Elections v. Socialist Workers Party, 440 U.S.

173, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979),

where the Court was faced with an Illinois

requirement that for independent or "new"

party candidates to appear on a statewide

ballot a nominating petition with 25,000 sig-

natures was necessary, but for such candidates

to appear on a municipal ballot the number of

Signatures required was five percent of the

- 37 -

number voting in the most recent municipal

election. The five percent figure produced a

total less than 25,000 everywhere except in

Chicago and Cook County, where it required

some 35,000 signatures. Noting that’ the

state's "interest in avoiding overloaded bal-

lots in statewise elections is served by the

25,000 signature requirement" and that the

state "has advanced no reason, much less a

compelling one, why the State needs a more

stringent requirement for Chicago," id. at

186, 99 S.Ct. at 991, the Court held the elec-

tion code "unconstitutional insofar as _ it

requires independent candidates and new polit-

ical parties to obtain more than 25,000 signa-

tures in Chicago." Id. at 187, 99 S.Ct. at

991.

Other ballot access cases are less clear as

to the standard applied, especially in regard

to the least restrictive means prong of the

Strict scrutiny test. In Williams v. Rhodes,

393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968),

- 38 -

the Court struck down Ohio's complex set of

ballot access requirements as applied to pres-

idential elections. These made no provision

for independent cand: dates or write-in votes,

required a new party to obtain signatures of

fifteen percent of those voting in the preced-

ing gubernatorial election by a very early

date, and imposed numerous other burdensome

and detailed organizational procedures,

including the holding of a primary election

conforming to rigorous standards. These re-

quirements were so restrictive that’ the

American Independent Party candidates were

unable to qualify despite having garnered

Signatures (over 450,000) well in excess of

the fifteen percent requirement. The Court

held that these provisions, "taken as a

whole," imposed undue burdens on the funda-

mental voting and associational rights of

individuals not favoring major party candi-

dates and hence were invidiously discrimina-

tory and violative of the equal protection

- 39 -

clause. Id. at 34, 89 S.Ct. at 12. However,

doubtless because the combined effect of the

Ohio laws was plainly so far in excess of what

was necessary or appropriate to further the

state's legitimate and compelling interests,

the Court's opinion does not clearly indicate

that the only valid regulations in this area

are those imposing the least restrictive re-

quirements necessary to the satisfaction of

such interests.

‘n Jenness v. Fortson, 403 U.S. 431, 91

S.Ct. 1970, 29 L.Ed.2d 554 (1971), the Court

upheld Georgia laws providing that independent

candidates, and candidates of political

parties whose candidate in the last presiden-

tial or gubernatorial election received less

than twenty percent of the votes cast, could

be placed on the general election ballot only

by submitting, by the deadline for candidates

to file for the major party primaries,

petitions signed during the preceding 180 days

by a number of eligible voters not less than

-40-

ee eee SOO. =”

five percent of those who were "eligible to

vote in the last election" for the office

being sought. Id. at 433, 91 S.Ct. at 1972

(emphasis added). The Court held there was

"an important state interest in requiring some

preliminary showing of a significant modicum

of support" before granting ballot access,

"the interest, if no other, in avoiding confu-

sion, deception and even frustration of the

democratic process ...." Id. at 442, 91 S.Ct.

at 1976. Nothing in Justice Stewart's opinion

for the Court, expressing the views of seven

Justices (Justices Black and Harlan concurred

in the result), suggests application of the

striet serutiny test. It is especially note-

worthy that the Court, though piainly aware

that the five percent of those eligible to

vote requirement was higher than comparable

requirements in nearly every other state (id.

at 442 & n. 28, 91 S.Ct. at 1976 & n. 28),

nevertheless did not appear to _ consider

whether the state's interests might not be

adequately served by a lesser percentage.

In American Party of Texas v. White, 415

U.S. 767, 94 §$.Ct. 1296, 39 L.Ed.2d 744

(1974), and Storer v. Brown, 415 U.S. 724, 94

S.Ct. 1274, 39 L.Ed.2d 714 (1974), the Court

primarily focused on the level of support

requirements which minor party or independent

eandidates had to meet in order to appear on

the ballot. In American Party the Texas re-

quirements in this regard were upheld. In

Storer the California requirements were held

not to be facially invalid, but remand was

ordered for factual determination as_ to

whether the brief period (twenty-four days)

allowed for signature gathering, coupled with

the provision that those who voted in any of

the preceding primaries were ineligible to

Sign the necessary nominating petitions, ren-

dered invalid the requirements that the nomin-

ating petitions be signed by five percent of

the total votes cast in the last general

election, as being more than "a _ reasonably

diligent independent candidate [could] be

-42-

expected to satisfy." Id. at 742, 94 S.Ct.°at

1285.29 Although there is some language in

these decisions indicating application of the

strict scrutiny test, we believe Professor

Tribe fairly characterizes these two opinions

as a whole in stating that:

",..each actually assayed the require-

ments by a far less demanding

standard. In particular, the Court in

several instances did not inquire

whether a less restrictive alternative

would adeqately protect the state's

interest .... The standard of review

actually applied, therefore, seems to

have been a mix of strict and minimal

scrutiny." L. Tribe, American

Constitutional Law (1978), 783.

25while this language might imply that’ the

requirement would be unconstitutional if there were any

reasonably diligent candidate who could not meet it, we

agree with Professor Tribe that such is an incorrect

reading: "The rest of the Storer opinion, however,

leaves no doubt that the Court is referring to a

reasonably diligent candidate who has a fair amount of

popular support." L. Tribe, American Constitutional

Law (1978), 783 n. 33. This is further confirmed by

the statement in American Party, of which Justice White

was also the author, that "...what is demanded may not

be so excessive or impractical as to be in reality a

mere device to always, or almost always, exclude

parties with significant support fram the ballot." 415

U.S. at 783, 94 S.Ct. at 1307 ‘emphasis added).

- 43-

We also observe that in Storer the Court

noted there was "no litmus-paper test" in this

area and that "[d]Jecision in this context, as

in others, is very much a ‘matter of

degree.'" Id. at 730, 94 S.Ct. at 1279. It

seems to us that these remarks are particu-

larly apt as applied to determination of the

validity of a requirement for a given level of

support. Since Jenness, Storer and American

Party, as well as other decisions, clearly

establish the constitutionality of condition-

ing ballot access on a preliminary showing of

a substantial modicum of popular support, the

validity of such requirements, absent any

peculiarly invidious feature, will usually

present a “how much" rather than a "whether"

question. This sort of question, it seems to

us, is particularly ill-suited for mechanicai

26 sae, e.g. Illinois State Board of Elections v.

Socialist Workers Perty, supra; Jackson v. Ogilvie, 325

F.Supp. 864 (N.D.I11.), aff'd mem, 403 U.S. 925, 91

S.Ct. 2247, 29 L.Ed.2d 705 (1971); Mandel v. Bradley,

432 U.S. 173, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977).

- 44 -

application of the strict scrutiny test, es-

pecially its least restrictive means prong.

If three percent of the registered voters is

the challenged standard, the state will be

hard put to defend the proposition that the

difference between that figure and 2.7 percent

is vital to its interest. By the same token,

however, it cannot be denied that the interest

in assurance of popular support is not "served

equally well" (American Party, 415 U.S. at

781, 94 S.Ct. at 1306, emphasis added) by 2.7

percent as by three percent.

In the most recent of the Supreme Court's

ballot access decisions, Anderson V.

Celebrezze, --- U.S. ---, 103 S.Ct. 1564, 75

L.Ed.2d 547 (i983), the Court invalidated, as

too early, Ohio's March 20, 1980 filing dead-

line for independent presidential

candidates. The Court was divided five to

four, and the majority placed heavy emphasis

on the strong national, and diminished state,

interest in presidential elections. Id. °--

- 45 -

th bette ahd ae

U.S. at <---, “7, ---, 1063 S.Ct. at 1572,

1577, 1579, 75 L.Ed.2d at 561, 567, 569. The

opinion contains language suggesting’ that

generally applicable, evenhanded measures

restricting ballot access to candidates making

a preliminary showing of substantial support

are not "constitutional. y-suspect." Id. ---

U.S. at --- & n. 9, 103 S.Ct. at 1569 & n. 9,

75 L.Ed.2d at 557 & n. 9. This, in turn,

appears to militate against application of the

strict scrutiny test to measures of that par-

ticular variety. Moreover, in articulating

overall standards for review of alleged uncon-

stitutionally restrictive election regulations

generally, the Court did not expressly invoke

the strict scrutiny test. Rather, it directed

that there first be considered "the character

and magnitude of the asserted injury" to con-

Sstitutionally protected rights; the next step

was to "identify and evaluate the precise

interests" of the state asserted as justifi-

cations for the burdens imposed by its rule,

- 46 -

Fates Te z LOONIE LIN IIT Be PILATE EA BL IIH Aiiaiees

determining "the legitimacy and strength of

eaci" such interest and "the extent to which

those interests make it necessary to burden

the plaintiff's rights." Finally, decision

was to be reached "[o]nly after weighing all

these factors." = == U8. Of =“, 199

S.Ct. at 1570, 75 L.Ed.2d at 558 (emphasis

added). However, the Court noted that "(t]he

results of this evaluation will not be auto-

matic; as we have recognized, there is '‘'no

substitute for the hard judgments that must be

made.'" Id. (quoting Storer).

We conclude from these decisions that the

strict secrutiny test is likely not applicable

in determining whether a given level of pop-

ular support, required by the state as a con-

dition of candidate ballot access, is too high

to meet constitutional standards. We note

that the Tenth Circuit appears to have reached

essentially the same conclusion in Arutunoff

v. Oklahoma State Election Bd., 687 F.2d 1375,

1380 (10th Cir.1982), cert. denied, --- U.S.

-47 -

--, 103 S.Ct. 1892), 77 L.Ed.2d 282 (1983).

yr the reasons previously stated, if the

‘riet serutiny test is likely inapplicable to

ich a requirement where it operates to deny a

indidate any access to the ballot, then it

yuld seem evident that it would be inappli-

ible where the requirement does not deny

allot access at all but only designation of

indidate party affiliation. See also Mathers

Morris, 515 F.Supp. 931, 935-38 (D.Md.),

ff'd, 649 F.2d 280 (4th Cir.) (per curiam),

ff'd mem., 454 U.S. 934, 102 S.Ct. 467,70

.Ed.2d 241 (1981).

Concluding that the strict scrutiny test is

napplicable, we will attempt to apply the

neighing" process suggested in Anderson,

ecognizing, with it, that the "evaluation" is

>t automatic and that there is no substitute

or the hard judgments that must be made.

hough we agree that, particularly in this

rea, “each case must be resolved on its own

acts," Arutunoff, 687 F.2d at 1379, neverthe-

on Nien MY See hot tanh iti tine

ess, aS an inferior court, on "weighing" and

evaluation" must necessarily be informed by

he substantive results in analogous decisions

f the Supreme Court.

PPLICATION OF THE STANDARD

[2] We are first enjoined to consider the

character and magnitude" of the asserted

njury to appellants' constitutional rights.

utting this inquiry in slightly different

erms, which we believe have the same substan-

ive meaning but provide a more convenient

ramework for our analysis in this particular

ase: How high is the hill which appellants

re asked to climb, and what sort of asserted

njuries to their rights ensue if they are

inable to climb it?

We initially consider the sort of injury

hich ensues. The rights in question under

he First Amendment are to cast a meaningful

ote for a candidate of one's choice and to

leaningfully associate for the advancement of

- 49 -

ylitieal beliefs. Anderson, --- U.S. at ---,

3 S.Ct. at 1569, 75 L.Ed.2d at 557. Under

re equal protection clause there is also the

ight not to be subjected to invidious or

frrational discrimination in respect to these

1terests. Williams. Here, any injury to any

f these rights is_' minor, indirect and

emote. As previously discussed, Libertarians

1d other supporters of Dart had full oppor-

unity to vote for him, and to have their vote

ounted equally, and Dart's candidacy was

vailable as a rallying point for like-minded

itizens. Further, the ballot's omission of

he designation "Libertarian" by Dart's name,

hile listing "Democrat" by the name of each

f his four opponents, resulted not from any

nvidious or irrational discrimination, but

ather from neutral criteria of general and

venhanded application, criteria which Jenness

nd related decisions indisputably establish

fe rationally and legitimately related to

istinctions which the state may make between

- 50 -

litical parties in its "recognition" or

eatment of them. See Bullock, 405 U.S. at

7, 92 S.Ct. at 858 ("distinguishing between

litical parties on the basis of success in

ior elections" is permissible); Anderson,

- U.S. at --- n. 9, 103 S.Ct. at 1570 n. 9,

L.Ed.2d at 557 n. 9.

Perhaps the inability of a candidate affil-

ted with a "minor" party to have the ballot

signate his party affiliation, while the

spective party affiliations of candidates

filiated with "major" parties do appear on

e ballot, diminishes the former's chances of

ecess in any given election. If this were

ue to any really significant extent, the

ek of party designation might arguably be

id to impair the ability to cast a

aningful vote, or to meaningfully associate

r the enhancement of political belief. But

e truth of such a proposition is by no means

lf-evident, and there is no evidence in this

cord, and appellants point to no recognized

terature or facts of common knowledge, so

monstrating. The 1980 presidential election

sults in Louisiana (see note 19, supra), in

1ich apparently Anderson ran simply as an

ndependent"™ and the four "minor" and _ two

major" party candidates ran under their

spective party names (see note 18, supra),

») not so suggest, as Anderson had the third

ighest vote total, with well over twice the

ote of the highest "minor" party candidate.

| is certainly not obvious that designation

' affiliation with a party that has been

lable to register as many as five percent of

ve registered voters will be helpful to a

andidate. Moreover, except in presidential

lections, the Louisiana ballot designs ion of

candidate's party affiliation does not indi-

ate that the candidate has been selected by

f has the support of that party or any of its

embers (other than the candidate). Hence,

he "“undesignated" candidate is not labeled as

acking all organizational support or as hav-

- 52-

less than any other candidate. And the

lot is not structured as a race between

ties which the "minor" parties are not

owed to enter. It is a candidate ballot,

only significance of which is the election

individual candidates, not party nominees

such. Perhaps over a period of time a

nor" party would benefit from the

posure" attendant to having its name appear

the ballot, but this is wholly

‘culative. The effect might be just the

posite, as with the perennially losing can-

late. The Court observed in Anderson that

ry electoral reguiation "inevitably

‘ects--at least to some degree--the individ-

"s right to vote and his right to associate

-h others for political ends," but plainly

ylied that this factor alone did not consti-

-e a regulation or burden "constitutionally-

pect." --- U.S. at ---, 103 S.Ct. at 1569,

L.Ed.2d at 557. We conclude that any

jury to the Libertarian Party members’

- 53 -

SNM RY IG FIRE I TCT Th FRY

ability to effectively vote and associate for

political purposes, arising from the Party's

failure to be "recognized" under Louisiana

law, is at most indirect, attenuated and

slight.

Is the hill appellants have been asked to

elimb too high? Since, as we have noted, the

decisions of the Supreme Court clearly recog-

nize that a state may properly condition party

ballot recognition on "some preliminary show-

ing of a significant modicum of support,"

Jenness 403 U.S. at 442, 91 S.Ct. at 1976,

this question becomes’ essentially one of

degree. Louisiana allows "recognition" on the

basis of either five percent of the vote cast

at the last presidential election or regis-

tered affiliation of not less than five per-

cent of total registration. Support at the

level of five percent of total registration

would not appear to be excessive, as that was

the figure sustained in Jenness. No subse-

quent decision of the Supreme Court has

-54-

uestioned the soundness of this holding in

‘enness and Jenness has been eited with

ipproval in regard to its "some preliminary

showing of a significant modicum of support"

iolding in a host of subsequent Supreme Court

allot access cases. See Bullock, 405 U.S. at

47, 92 S.Ct. at 858; Storer, 415 U.S. at 738,

4$.Ct. at 1238; American Party, 415 U.S. at

82 n. 14, 789, 94 S.Ct. at 1307 n. 14, 1310;

llinois State Board of Elections, 440 U.S. at

185, 99 S.Ct. at 990; Anderson, --- U.S. at --

n. 9, 103 S.Ct. at 1570 n. 9, 75 L.Ed.2d at

57 n. 9. See also Lubin, 415 U.S. at 718-i9,

448$.Ct. at 1320-21; Clements, --- U.S. at ---

. 102 §$.Ct. at ---, 73 L.Ed.2d at 517.

‘ndeed, no Supreme Court decision has invali-

jated a ballot access requirement solely or

sven primarily on the ground that the required

level of support--in terms of number or per-

rentage of the vote or voters--was

excessive, 27 Rather, the critical focus seems

to have been mainly on the provisions related

>» how the required level of support had to be

smonstrated, such as the length of time

Llowed to collect signatures, the time at

nich the level of support had to be demon-

trated, what citizens could be counted for

hat purpose, and the like. See e.g., Moore

. Ogilvie, supra; Illinois State Board of

lections, supra; Mandel v. Bradley, supra;

torer, supra. We recognize there are intima-

ions in Storer, 415 U.S. at 739, 94 S.Ct. at

283, that the Jenness level of support re-

uirements may approach the max imum

ermissible for exclusion of candidates from

he ballot. See also L. Tribe, American

onstitutional Law (1978), 784

",..requirements as high as five percent are

ot unconstitutional per se, but requirements

——

2We do not regard Williams as being to the

mtrary. There, the focus was clearly on the totality

f the barriers. Indeed, in Williams the American

idependent Party met the fifteen percent of the vote

1 the previous election requirement (which would be

juivalent to about eight percent of registered voters,

' 53 percent of those registered voted).

- 56 -

eee eee ‘ PPD

ubstantially in excess of five percent

robably are" (footnote omitted)). But here,

he five percentage figure, whether applied to

hose voting in the last presidential election

r to registered voters, is not greater than

hat approved in Jenness (five percent of

hose eligible to vote in the last election),

nd we hold that, of itself, it is not exces-

ive.28 We are unable to find Louisiana con-

titutionally at fault for using five percent,

nstead of three percent or one percent, for

urposes of its statutory scheme.

28while the evidence shows that only the Democratic

nd Republican Parties, and; sane years ago, the States

ights Party, have met the Louisiana requirements for

recognition,” there is no showing of the effort in

his regard, if any, made by any other party, or that

ny “unrecognized" party had ever demonstrated in an

nner, whether by the vote received by candidates it

upported, its number of registered voters, petitions,

laimed membership or otherwise, any significant

easure of popular support. See note 25, supra. The

lighest "minor" party level support which the record

hows is the two thirds of one percent vote received by

he American Party in the 1980 presidential election

John Anderson, running as an es Pueerven 1.7

ercent). See note 19, supra

- 57 -

Appellants, however, also contend that the

ouisiana recognition requirements are overly

tringent in respects other than simply re-

uiring too high a_e percentage level of

upport.

In this connection, appellants initially

ontend that both of the Louisiana recognition

lternatives--that based on the previous

residential vote and that based on registered

oters--are excessive because they are

easured against statewide totais although

heir application is not confined to statewide

lections, but extends to purely local

lections as well, such as_ the municipal

lection in which Dart was a candidate. This,

f course, was not the situation in Jenness,

here the five percent standard was applied

gainst the number eligible to vote in the

ast election for the particular office in

uestion. As an abstract matter, we recognize

here is considerable force in this particular

Ontention of appellants, and much can be said

- 58 -

r the proposition that Louisiana would be

1l advised to allow each of its five percent

andards to be satisfied in the particular

ea where the election as to which a party

sires to be "recognized" is held. Under such

system, if the Libertarian Party had polled

ve percent of the 1980 presidential vote

st in the New Orleans City Council, District

area, or if by December 1981 five percent of

ie vegistered voters in the New Orleans City

uneil, Distriet B area were registered as

bertarians, then Dart would have been

titled to have "Libertarian" placed under

Ss name on the ballot for the February 1982

w Orleans City Council, District B "primary"

ection. However, we decline todetermine in

iis ease whether Louisiana is constitu-

onally required to provide such a

ocalized" alternative to its standards for

irty "recognition." The evidence is quite

ear that appellants would not in any parish

me remotely close to meeting even a_ two

- 59 -

recent requirement--whether applied to presi-

ntial vote or voter registration--and they

not contend otherwise, or that the

uisiana Libertarian Party would so much as

proach qualification for “recognition,” in

w Orleans City Council, District B or any-

ere else, under a "localization" of the

uisiana party recognition standards. Ac-

rdingly, although we do not pass on the

stract merits of appellants' contentions in

iis regard we do decline to reverse the judg-

nt of the district court on any such

sis. See Storer, 415 U.S. at 734, 94 §.Ct.

1281 ("... neither Storer nor Frommhagen is

| position to complain that the waiting

‘riod is one year, for each of them was

filiated with a qualified party no more than

x months prior to the primary"); Broadrick

Oklahoma, 413 U.S. 601, 609-16, 93 S.Ct.

08, 2914-18, 37 L.Ed.2d 830 (1973);

utunoff, 687 F.2d at 1380.

- 60 -

The Libertarian Party and Dart also attack

the presidential vote alternative of

Louisiana's party recognition requirements

because it presents an insuperable barrier to

any political party, no matter how great its

popular support, which is either formed after

the most recent presidential election. or

exists exclusively for the purpose of partic-

ipating in State politics. However, the

Libertarian Party fits neither of these class-

ifications. It was formed well prior to the

1980 election and ran presidential and vice

presidential candidates in that election who

appeared on the ballot in Louisiana. Appel-

lants do not contend, and none of the evidence

Suggests, that the Party, its purposes, level

of support or relevant circumstances have

materially changed since then, or that there

is any reason to believe that it is prejudiced

by these particular aspects of the presiden-

tial vote alternative. It would thus appear

that appellants are in no position to complain

» Qi -

ARE: GT NE aOR TA

of these asserted defects in the presidential

vote alternative. Further, in any event the

registered voter alternative remains

available.

Appellants assert, however, that the regis-

tered voter alternative is overly burdensome

because it it too difficult to persuade voters

to change their registration. They point out

that in Jenness the requirement was for peti-

tions, not registration. We are not

persuaded. Party affiliation registration or

change thereof is not a burdensome procedure

under Louisiana law, and it may be

accomplished at any time. There are no limits

on how frequently one may change registered

party affiliation, nor any minimum time which

nust elapse between changes. Registered party

affiliation does not affect the right to vote

or run in any election29 or to sign nominating

29E xcept that one may not vote or run in an election

for party (not governmental) offices or vote in a

party's presidential preference primary unless one is

registered as affiliated with that party thirty days

- 62 -

etitions for candidates. There is no

vidence that procuring the requisite number

f party registrants is significantly more

ifficult than procuring a like number of

ignatures of registered voters on a petition

equesting party recognition. We observe that

n Jenness all the signatures on the petitions

ad to have been executed within the six

onths next preceding the candidate filing

eadline for the primaries. No such limita-

ion on the length of time utilized to procure

he requisite number of registered party

ffiliates exists under Louisiana law.

Appellants rely in this connection on N.C.

ocialist Workers Party v. N.C. State Board of

lections, 538 F.Supp. 864 (E.D.N.C.1982),

here the court held invalid a North Carolina

allot petiton provision for minor party

andidates requiring the petiton to recite

hat those signing thereby directed that they

e registered as affiliated with the party in

—

efore the election in question. See note 13, supra.

- 63-

question. The provision concerning registra-

tion was relatively new, and unrebutted evi-

dence showed that while the plaintiff

Socialist Workers Party had had no difficulty

in meeting the petition requirements before

the provision concerning its effect on the

signer's registered affiliation came_ into

force, thereafter the Party was "completely

stymied" because of the resistance on the part

of potential signers engendered by the new

provision. No remotely comparable evidence

exists in this case. Nor are we informed of

the effects on a voter which North Carolina

law attaches to his or her registered party

affiliation. More significantly, under the

307 ¢ may be, for example, that in certain areas of

North Carolina the Democratic primary was, in practical

effect, the election, and that voting in such primary

was restricted to those registered as Democrats.

Voters who may have desired a minor party candidate to

appear on the ballot for a particular statewide office

might have been reluctant to sign such a petition out

of fear that by doing so they might be effectively

prevented from voting in the only "real" election, the

Democratic primary, for local offices (though they

could change their registration back, this. would

require extra effort, would appear to render their

- 64-

North Carolina system, the petitions were a

means of ballot access for the candidates.

Thus a voter was, in effect, required to join

the Socialist Workers Party in order to be

given the opportunity to vote for one of its

candidates. As the court explained: "The

restrictive effect is particularly serious in

the ease of the unaffiliated voter, one who

desires to join no party .... [The provision

burdens] the ability to vote effectively of

persons who wish to consider the Party's can-

didates but do not wish to join the Party."

N.C. Socialist Workers Party, 538 F.Supp. at

866. In Louisiana there is no such burden,

for Louisiana's requirements, unlike those of

North Carolina, do not restrict which candi-

date appears on the ballot, and unlike his

North Carolina counterpart the Louisiana voter

who is interested in voting for the candidate,

but not in joining the party, has full oppor-

petition signature false and might present timing

problems). Nothing canparable exists under the

Louisiana system.

- 65-

ara pe ts Pd CLE I OS RARE ey

LO SELON EO Ne ILE esis

Ghee RE Hea

unity to so vote, regardless of how many

egister as affiliated with the party. In

ouisiana, it is only those who want to assure

hat the party name, in addition to the de-

ired candidate, appears on the ballot, who

eed be concerned with whether the party has

ufficient registrants. It does not seem

nreasonable for Louisiana to provide that

uch concern be manifested by registered party

ffiliation.

Accordingly, we conclude that, as applied

void the asserted injuries to their rights

re not excessive or unreasonably difficult,

articularly in light of the relatively minor,

emote and attenuated nature of the asserted

njuries themselves. More simply put, the

character and magnitude" of the asserted

njury is not severe, quantitatively on quali-

atively.

We turn now to consideration of the State's

nterest asserted as justification for the

- 66 -

yurdens" imposed on appellants. This inter-

st is readily identified, namely the interest

n avoiding "“confusion" or "deception" in

2allot content. the legitimacy and strength

f this interest has been recognized in

umerous decisions of the Supreme Court.

enness, 403 U.S. at 442,91 S.Ct. at 1976;

ullock, 405 U.S. at 145, 92 S.Ct. at 857

interest in avoiding “voter confusion");

ubin, 415 U.S. at 715, 94 S.Ct. at 1319 (in-

erest in keeping ballots "understandable" is

of the highest order"); Storer, 415 U.S. at

32, 94 S.Ct. at 1280 (quoting Jenness).

hile the particular ballot confusion or de-

eption addressed in those cases was that

hich might arise from an excessive number of

andidates appearing on the ballot, it appears

bvious that those decisions rest on_ the

roader principle that the state had a strong

nd legitimate interest in minimizing ballot-

ngendered voter confusion or deception gener-

lly, regardless of what it is about the bal-

ot that causes it to have that potential.

- 67 -

It is evident that if candidate political

"party" affiliation is to be designated on the

ballot, the potential exists for voter confu-

sion or deception unless there are some re-

strietions on what constitutes a political

"party" for these purposes. A political party

implies a relatively numerous group of people,

associated together for common political pur-

poses, with some sort of organization actively

functioning in the political arena. For the

state's ballot to represent that a candidate

is affiliated with a particular political

party, when in fact there is no such party in

the commonly understood sense of the word, has

the obvious potential for causing voter decep-

tion and confusion. Moreover, the quality and

quantity of information actually imparted to

voters by the designation of candidate party

affiliation will tc a significant extent vary

with the degree to which the designated party

is known to the voters, and a_ reasonable

method by which to gauge such voter knowledge

- 68 -

Ee re ee ae

is the level of support which the party has

2xchieved among the electorate. Indeed, no

yractical and equally effective alternative

zauge suggests itself. Finally, just as an

unrestricted proliferation of candidate names

on the ballot may engender confusion or decep-

tion, so may an unrestricted proliferation of

party mames. And, requiring some preliminary

showing of a significant modicum of support

for a party before a candidate's affiliation

with it is designated on the ballot is neces-

sary to further the state's strong and legit-

imate interest in minimizing ballot confusion

and deception in the same way as requiring

such a showing respecting a candidate, before

his name is listed on the ballot, is necessary

to further such interests.?!

3lwe recognize that on presidential election ballots

Louisiana has allowed designation of the party

nominating the presidential candidate without requiring

any significant showing of support for that party. See

notes 15, 16 and 18, supra, and accompanying text. We

do not consider that Louisiana is thereby obliged to

- 69 -

ae EE NE

Appellants suggest there is no need to have

any party designation on the ballot, and that

it is unimportant because the ballot's party

designation does not imply any endorsement or

support by the named party. We reject these

contentions. Louisiana allows almost unre-

—_—_—

apply the same scheme to the rest of its elections.

The State may well have chosen the system it did for

presidential voting to achieve greater uniformity with

other states in such a truly national contest. This is

certainly a Rags Comte consideration. See Anderson, --

- U.S. at ---, ---, ----, 103 S.Ct. at 1572, 1577,

1579, 75 L.Ed.2d at 561, 567, 569. Additionally, the

party of a presidential ‘nominee might have significant

support elsewhere in the nation, though not in

Louisiana, the relevance of such out-of-state support

for the candidate's party is obviously far greater in

presidential than in state elections, and Louisiana

voters would be more likely in presidential than in

state elections to familiarize themse!ves with a party

having significant support only out of state. The

difficulty of measuring such out-of-state support for

any given party may have influenced Louisiana in its

decision to impose no significant level of support

requirements for party name designation on the

presidential ballot. Finally, Louisiana's presidential

ballot--like that of most other states--is organized by

parties. The portion of the ballot applicable to the

residential race consists only of party nominees and

independents. In that circumstance, Louisiana may

reasonably have felt it more appropriate to list the

party name, even though the party had not demonstrated

Significant support, and more prejudicial to the party

and candidate to refuse to do so, than in the case of

Louisiana's other elections where no candidate appears

on the ballot as or by virtue of being a party naminee.

= 99 «

strietec candidate access to the ballot.

While this openness subserves the interests

which the First Amendment is designed _ to

foster, it likewise, as the previously cited

decisions recognize, has more of a tendency to

produce voter confusion or deception than does

a system which restricts candidates to those

who have made some preliminary showing of a

significant modicum of support. Some infor-

mation about candidate affiliation with a

party which has demonstrated a _ significant

modicum of support will mitigate this tendency

to greater voter confusion or deception which

is the inevitable consequence of Louisiana's

otherwise First Amendment enhancing "open"

ballot. Further, the fact that Louisiana's

electoral scheme gives no formal or structural

Significance to party nomination or endorse-

ment tends to increase, rather than decrease,

the need for some ballot information concern-

ing party affiliation. But that party-related

ballot information need not be so open ended

- Fi -

or unrestricted as to itself engender confu-

sion or deception. 32 And, nothing in the

Constitution forces Louisiana to choose

between giving parties no recognition

whatsoever or, on the other hand, giving them

the major role in the formal electoral process

that most other states do. Moreover, the less

"importance"which is assigned to the ballot

designation of candidate party affiliation,

the less "prejudice" to appellants on account

of the Libertarian Party not meeting the

support qualifications required to be listed

on the ballot as the "Party" with which a

candidate is affiliated.

32anpellants also suggest that a designation of

political beliefs would serve any needed informational

function as well as party affiliation. while avoiding

any necessity to provide standards to party

"recognition." We disagree. Ballot space and the time

for a voter to consider what he or she sees on the

ballot are necessarily severly limited. The simple

reference to an existing political party which actually

has significant public support carries far greater

potential for imparting much more, and more accurate

and relevant, information than does the potentially

infinite variety of self-serving descriptions of

political beliefs by which candidates might choose to

describe themselves.

-72-

Weighing and evaluating the character and

nagnitude of the asserted injury to _ those

interests of appellants which the First Amend-

nent is designed to foster, the strength and

legitimacy of Louisiana's interest asserted in

justification of the burdens imposed and the

extent to which those interests necessitate

such impositions, we conclude that the

Louisiana statutes in question do not violate

appellants' constitutional rights under either

the First Amendment or the equal protection

clause. Louisiana's standards for party

recognition are high, indeed close to, or

perhaps even marginally beyond, those which

might be judged permissible were the con-

sequences of failing to meet them signifi-

cantly more severe, such as denial of candi-

date ballot access. But the consequences are

not severe, and appellants' ability to exer-

eise and enjoy their rights under the First

Amendment are neither clearly, directly, nor

Significantly impaired. Though Louisiana

-73-

reats the Libertarian Party differently from

some other parties, it does so solely on the

asis of neutral, evenhanded criteria of

reneral applicability. It is not required to

‘reat “things that are different as _ though

-hey were exactly alike." Jenness, 403 U.S.

t 442, 91 S.Ct. at 1976; Anderson, --- U.S.

it ---, 103 S.Ct. at 1576, 75 L.Ed.2d at

165. These criteria and the treatment result-

ing from their application are _ reasonably

‘salculated and important to the furtherance of

strong and legitimate interests of the

state. We do not suggest that Louisiana's

slectoral system would inevitably collapse in

rear total confusion and deception if its

allot did not designate any candidate's party

iffiliation, or if its requirements for ballot

Jesignation of candidate party affiliation

vere sufficiently lowered so that the

ibertarian Party would qualify. However, we

fail to perceive any significant injury to, or

invidious treatment of, appellants under the

-74-

Louisiana system. Louisiana has acted fairly

to materially further, though perhaps not to a

great degree, its strong and legitimate inter-

ests in reducing the potential for voter con-

fusion and deception which its ballot might

otherwise tend to engender. As applied to

appellants, we find the Louisiana provisions

in question to be constitutional. The judg-

ment of the trial eourt is therefore affirmed.

AFFIRMED.

-75-

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CIVIL ACTION NO. 82-96 SECTION "C"

JENRY T. DART and the

LIBERTARIAN PARTY OF LOUISIANA

VERSUS

JAMES H. BROWN, Secretary of State for

the State of Louisiana, and EDWIN A.

LOMBARD, Clerk of the Criminal District

Court for the Parish of Orleans, State of

Louisiana

* *¢£ *¢*¢ ¢ &¢& €¢& &€& & & & «FOF

MEMORANDUM OPINION

Plaintiff, Henry T. Dart, is a duly quali-

fied candidate in the February 6, 1982

election for the District B seat of the New

Orleans City Council and is a member of the

Libertarian Party of Louisiana , also a

plaintiff in this action. The plaintiffs

allege that LSA-R.S. 18:441, 551(D), 551(E)

violate the First and Fourteenth Amendments to

the United States Constitution, and the

Louisiana Constitution Article 1 3 (1974).

In particular, plaintiffs allege that these

State laws afford a different and impermis-

- 76-

ees

sibly discriminatory access to the election

ballot for so-called recognized parties, de-

priving the plaintiffs' constitutional rights

to equal protection of the law. The defend-

ants in this matter are James H. Brown,

Secretary of State for the State of Louisiana,

and Edwin A Lombard, Clerk of the Criminal

District Court for the Parish of Orleans,

State of Louisiana. Jurisdiction is invoked

pursuant to 28 U.S.C. 1343.

The facts in this case can be simply stated

and have been largely stipulated by the

parties.

On December 18, 1981, Dart qualified as a

candidate for Councilman for District B of the

City of New Orleans. The election is sche-

duled for February 6, 1982. In his Notice of

Candidacy filed with the Clerk of the Criminal

Distriet Court for the Parish of Orleans, Dart

checked the box indicating that he was not

affiliated with a recognized party and then

typed in "Libertarian Party" next to that

-77-

box. On December 21, 1982, the Clerk of

Criminal District Court, Edwin A. Lombard,

certified to the Secretary of State, James H.

Brown, the candidates qualified for the elec-

tion. The certification lists the political

affiliation of all candidates as Democrats,

except Dart, who is listed as having no party

affiliation. On January 4, 1982, Dart wrote

to Brown and Lombard and demanded that

"Libertarian Party" be placed after his name

on the ballot. Melvin L. Belar, Legal Counsel

of the Secretary of State, responded by letter

dated January 7, 1982, stating that’ the

Secretary of State lacked authority to place

Dart's party affiliation on the ballot because

his was not a recognizd party. In its present

form, the ballot indicates the party affili-

ation of all candidates for District B

Councilman as Democrats, except Dart, who is

listed without party affiliation. Dart and

the Libertarian Party of Louisiana filed this

lawsuit on January 11, 1982, seeking to have

- 78 -

the Libertarian Party placed along with Dart's

name on the ballot for the February 6, 1982

election or, alternatively, enjoining defend-

ants from placing the party affiliation of any

candidate on the ballot for the February 6,

1982 election. Plaintiffs then moved for a

temporary restraining order and preliminary

injunction. A hearing on the preliminary

injunction was held on January 29, i982 at

9:00 a.m., and the Court, pursuant to stipula-

tion by all parties, ORDERED the trial on the

merits consolidated with the hearing on the

application for a preliminary’ injunction.

Fed.R.Civ.P. 65(a).

DISCUSS ION

Under the Louisiana Election Code, only a

"recognized party" can be listed on an elec-

tion ballot.

Political party designation. The

political party designation of a candi-

date who is registered as being

affiliated with a recognized political

party shall be printed on the primary or

general election ballot on the same line

-79-

and immediately after or below the can-

didate's name. If a candidate is not

affiliated with a political party, the

space after his name _ shall be left

blank.

LSA-R.S. 18:551(D).1 A party is recognized

"if one of its candidates for presidential

elector received at least five percent of the

votes cast in this state for presidential

electors in the last presidential election, or

if at least five percent of the registered

voters in the state are registered as being

affiliated with the political party.” LSA-

R.S. 18:441. At the present time, only the

Democratic Party and the Republican Party are

recognized in Louisiana.

Initially, the plaintiffs seek to have this

Court apply "strict scrutiny" in reviewing

these state election laws on the grounds that

the said statutes impinge upon the plaintiffs'

IThis particular statute is inapplicable to national

elections for president and vice president, where a

candidate's party affiliation may be designated on the

ballot regardless of whether a candidate is naminated

by a recognized party or by nominating petition. LSA-

R.S. 18:1259.

- 80 -

onstitutional right to vote and first amend-

ent right to freedom of speech. No authority

as been cited by the plaintiffs which would

arrant the application of strict scrutiny

nder the present circumstances. Where state

aw limits initial access to the ballot, the

loctrine of strict scrutiny has been invoked

eecause in that situation only a compelling

jtate interest can justify such a_ direct

urden upon the right to vote. See Lubin v.

farrish, 415 U.S. 709 (1974); Bullock wv.

rarter, 405 U.S. 134 (1972). The right to

jote, or access to the ballot as a candidate,

is not an issue in the present case. Dart is

idmittedly a qualified candidate in_ the

sleetion for Councilman from District B, and

1is name is on the ballot. The only question

to be resolved by this Court is whether Dart's

0litiecal affiliation should be designated on

the ballot in the same fashion as candidates

f recognized political parties. This contro-

rersy raises only vague allegations of uncon-

-81-

stitutional treatment, requiring something

less than strict serutiny. As the Court

stated in Clough v. Guzzi, 416 F.Supp. 1057,

1067 (D. Mass. 1976):

Voters have no constitutional right to a

wholly rational election, based solely

on reasoned consideration of the issues

and the candidates' positions, and free

from other 'irrational' considerations

ee We conclude that, even assuming

some positional advantage here, the

voters' right to choose their represen-

tatives is not sufficiently infringed as

to warrant strict scrutiny. .

Instead, this Court, in accordance with the

methodology employed in Krasnoff v. Hardy, 436

F.Supp. 304, 308 (E.D. La. 1977), will review

the merits of the plaintiffs' cause of action

and determine whether Louisiana has a legiti-

mate, rational reason for distinguishing

between major parties and non-recognized

parties. 2

Plaintiffs also allege a claim under the equal

protection guarantee of the state constitution. La.

Const. Art. 1 3. This clause, however, is merely a

restatenent of the equal protection clause of the

United States Constitution. Therefore, the Court's

- 82-

Plaintiffs have cited no authority requir-

ing a state to designate the political persua-

sion of an independent candidate. In fact,

the jurisprudence is firmly against the plain-

tiffs. In Jenness v. Fortson, 403 U.S. 431

(1971), the Supreme Court held that a Georgia

election law, which required the nominee of an

independent political body to file a nominat-

ing petition signed by not less than five

percent of the eligible voters before the

candidate and his party could appear on the

ballot, does not abridge constitutional rights

of free speech and association, and did not

violate the equal protection clause. The

Supreme Court concluded, as does this Court,

that the state has a valid, rational basis for

drawing a distinction between candidates from

a major party and candidates nominated by

smaller, independent parties.

analysis of the federally protected claims is equally

applicable to the cause of action aileged under the

State constitution. Burmaster_v. Gravity Drainage

District No. 2 of the Parish of St. Charles, 366 So.2d

1381 (La. 1978).

- 83 -

The fact is that there are obvious dif-

ferences in kind between the needs anc

potentials of a political party with

historically established broad support,

on the one hand, and a new or small

political organization on the _ other.

Georgia has not been guilty of invidious

discrimination in recognizing’ these

differences and providing different

routes to the printed ballot. Sometimes

the grossest discrimination can lie in

treating things that are different as

though they were exactly alike, a truism

well illustrated in Williams v. Rhodes,

Supra.

There is surely an important state in-

terest in requiring some _ preliminary

showing of a significant modicum of

support before printing the name of a

political organization's candidate on

the ballot--the interest, if no other,

in avoiding confusion, deception, and

even frustration of the democratic

process at the general election.

Id. at 441-42. Similarly, the same state

interests in avoiding confusion, deception,

and frustration, are served by requiring

political parties to attain some significant

modicum of support before the party's

candidate can be identified as such _ in

elections other than the presidential

election. Krasnoff v. Hardy, supra at 310;

Mathers v. Morris, 515 F.Supp. 931, 936 (D.

Md.), aff'd, 649 F.2d 280 (5th Cir.1981).

Louisiana presently operates under an open

primary election system. Any person whc

desires to become a candidate in a primary

election may qualify as a candidate by timely

filing a Notice of Candidacy, accompanied

either by a nominating petition or by the

qualifying fee and any additional fee

imposed. LSA-R.S. 18:461.3 If each candidate

were allowed to have his party affiliation

listed on the ballot, this would only compound

the pandemonium associated with open

primaries. Indeed, some candidates may be

endorsed by multiple political parties and the

very notion of a political party becomes

indefinite without some minimal voter require-

ment. Where would the state draw a line?

Plaintiffs have suggested that the most

rational solution is to eliminate the party

affiliation of all candidates from the

Dart orally represented to the Court that he

qualified as a candidate for District B Councilman by

filing his Notice of Candidacy and paying a fee of

$250.00.

- 85-

ballot. The Court, however, has already ruled

that the public has no constitutional right to

a wholly rational election. It is the role of

the legislature to weigh and balance the

policy consideration of a particular enact-

ment. Massachusetts Board of Retirement v.

Murgia, 427 U.S. 307 (1976). The Court's ‘task

in this case is to simply determine whether

the law has a rational basis. The Court has

found a legitimate rational reason for dis-

tinguishing between recognized parties and

non-recognized parties, and the mere fact that

plaintiffs propose an allegedly more rational

election ballot does not in any manner deter

the constitutionality of the state statutes.

See Anderson v. Winter, 631 F.2d 1238, 1240-41

(5th Cir.1980).

Moreover, it may be in the best public

interest to allow candidates affiliated with

recognized parties to designate their party

Status on the ballot because at the very

least, voters will be able to determine which

- 86 -

candidates have aligned themselves with the

major political parties. Consequently, the

law brings a measure of order to the election

ballot by permitting some information concern-

ing a candidate's political background without

going to the extreme of permitting every

eandidate to designate any "party" real or

imagined, serious or otherwise, which might

ultimately end up confusing the public.

The evidence at trial clearly demonstrates

that the law does not place any undue burden

upon minor political parties. Wade Brisbin, a

member of the State Central Committee for the

Libertarian Party, testified that the

Libertarian Party was actively seeking to

attain the status of a recognized political

party, especially during presidential

campaigns. In the 1980 presidential election,

the Libertarian Party was designated on the

ballot along with its nominee, Ed Clark.

Since a party can become recognized if it

obtains at least five percent of the state

- 87 -

vote in a presidential election, every vote

east for the presidential electors of the

Libertarian Party counts both toward the

election of its candidate and toward meeting

the requirements of a recognized party. In

effect, members of the Libertarian Party, or

other independent parties, have an added

incentive to vote for the nominee of their

party, because while an outright victory for

the party candidate may be unthinkable,

achieving the status of a recognized party is

a more reasonable goal and provides the first

step toward the long term success of the

party. Brisbin stated that the Libertarian

Party encountered no impediment in its effort

to obtain recognition during the last presi-

dential campaign. 4 According to the testimony

of Louis Bruder, Director of Registration,

4In the 1980 presidential election, the record

indicates that the Libertarian Party received only

8,240 votes out of 1,548,591 total votes cast in the

State of Louisiana, much less than one percent of the

total state vote (Exhibit D-1).

voters were not barred nor in any way

restricted from registering as affiliated with

the Libertarian Party, and he knew of no

activities by election officials which could

impede state recognition of the Libertarian

Party. In short, Louisiana law does not

insulate the major parties from competition by

newer or smaller parties. Instead, the law

provides an orderly avenue for upstart parties

to achieve state recognition.

CONCLUS ION

Based upon the foregoing authority, the

Court finds that the Louisiana statutes which

allow recognized parties access to the ballot

do not violate the plaintiffs' constitution-

ally protected rights. The Court is also con-

vinced that denying plaintiffs relief will not

Substantially impair Dart's chances at the

election, and therefore, plaintiffs have

failed to demonstrate the threat of irrepar-

able harm in this case. By contrast, the

- 89 -

ate of Louisiana, and ultimately the voting

bliec, would be seriously affected by a sud-

n disruption of this election. Krasnoff vy.

rdy, supra at 310. Accordingly, plaintiffs'

tion for preliminary injunction is DENIED,

d Judgment shall be entered in favor of the

fendants.

New Orleans, Louisiana, this the 3rd_ day

February, 1982.

S/Robert F. Collins

-90-

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CIVIL ACTION NO. 82-96 SECTION "C"

HENRY T. DART and the

LIBERTARIAN PARTY OF LOUISIANA

VERSUS

JAMES H. BROWN, Secretary of State for

the State of Louisiana, and EDWIN A.

LOMBARD, Clerk of the Criminal District

Court for the Parish of Orleans, State of

Louisiana

J UDGMENT

This matter was tried before the Court,

sitting without a jury, on January 29, 1982.

Pursuant to the Opinion of this Court, dated

February 3rd , 1982, and in accordance with

the provisions of Fed.R.Civ.P. 58:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED

that Judgment shall be entered in favor of the

defendants, James H. Brown and Edwin A.

Lombard, and against plaintiffs, Henry T. Dart

and the Libertarian Party of Louisiana, dis-

missing this cause of action.

Plaintiffs shall bear the ecosts of this

Suit.

-9i1-

New Orleans, Louisiana, this the 3rd_ day

of February, 1982.

S/Robert F. Collins

UNITED STATES DISTRICT JUDGE

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 82-3146

HENRY T. DART and the

- LIBERTARIAN PARTY OF LOUISIANA,

Plaintiffs-Appellants,

_ VERSUS

JAMES H. BROWN, Secretary of State for

the State of Louisiana, ET AL.,

Defendants-Appellees.

Appeal from the United States District Court

For the Eastern District of Louisiana

ON PETITION FOR REHEARING

(December 12, 1983)

Before TUTTLE”, POLITZ and GARWOOD, Circuit

dudges.

PER CURIAM:

IT IS ORDERED that the petition for rehear-

ing filed in the above entitled and numbered

cause be and the same is hereby denied.

ENTERED FOR THE COURT:

S/Will Garwood

United States Circuit Judge

"Senior Judge of the Eleventh Circuit, sitting by

designation.

= 93 <

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING

NO. C83-0318-B

JAMES E. BLOMQUIST, DAViD A. DAWSON,

LARRY E. GRAY, and GERARD B. REITH,

Plaintiffs,

VERSUS

THYRA THOMSON, Secretary of State for

the State of Wyoming,

Defendant.

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

This matter came on regularly to be heard

by the Court upon the cross motions of the

parties for summary judgment, James C. Linger,

Esq., and Robert E. Skar, Esq., appearing for

plaintiffs, and Rowena L. Heckert, Esq.,

Assistant Wyoming Attorney General, appearing

for defendant, and the Court having read and

considered the pleadings, and briefs of the

parties and the arguments ‘a counsel, and

being fully advised in the premises, FINDS and

ORDERS as follows:

-94-

Plaintiffs are members of the Wyoming

Libertarian party, and are residents of the

State of Wyoming. Defendant is the Secretary

of State for the State of Wyoming, and has

been sued in her official capacity only.

Plaintiffs brought this action under 42 U.S.C.

Section 1983, alleging that various provisions

in the Woming Election Code, W.S. Sections 22-

1-101 et. seq. (1977), violate their consti-

tutional rights under the First and Fourteenth

Amendments to the United States Constitution,

and seek injunctive relief. Jurisdiction of

this Court is invoked under 28 U.S.C. Section

1331. The Court has jurisdiction over the

parties and the subject matter of this action,

and venue is properly in the United States

Distriet Court for the District of Wyoming.

There are no genuinely disputed issues as to

any material fact, and it is appropriate for

this Court to determine this matter upon the

cross motions for summary judgment filed

herein.

-95-

Standard of Review.

Plaintiffs challenge the validity of W.S.

Sections 22-1-102(g), 22-5-201, 22-5-209, 22-

5-212, 22-5-215, 22-5-301, 22-5-303, 22-5-304,

22-5-305, and 22-5-307 of the Wyoming election

Code, alleging that such provisions unduly and

unnecessarily restrict plaintiffs' right to

ballot access. The threshold issue of this

case is the level of judicial scrutiny to

which said provisions may be subjected. De-

fendant has not denied that such challenged

provisions implicate fundamental rights

secured by the First and Fourteenth Amend-

ments. Ballot access restrictions burden two

fundamental rights protected by the Constitu-

tion, the right to political association, and

the right to cast votes effectively. Illinois

State Board of Elections v. Socialist Workers

Party, 440 U.S. 173, 184(1979), citing

Williams v. Rhodes, 393 U.S. 23, 30 (1968).

The Supreme Court has held that when such

- 96 -

vital individual rights are at stake," the

tate must establish a "compelling interest"

nd must "adopt the least drastic means to

ehieve [its] ends." Illinois State Board of

lections v. Socialist Workers Party, supra at

p. 184-185; Arutunoff v. Oklahoma _ State

lection Board, 687 F.2d 1375, 1381 (10th Cir.

982, J. Seymour dissenting); McLain v. Meier,

37 F.2d 1159, 1163 (8th Cir. 1980); American

arty of Texas v. White, 415 U.S. 767, 780-781

1974).

However, no hard-and-fast general rule or

‘tandard exists by which to measure state

allot access laws. Arutunoff v. Oklahoma

state Elections Board, supra at p. 1379. Each

‘ase must be resolved on its own facts, after

lue consideration is given to the practical

ffect of election laws of a given state,

fiewed in their’ totality. Clements v.

‘ashing, 457 U.S. 957 (1982). The Court

should conduct a careful examination of the

thallenged statute, and determine whether or

«@%<

not the statute may withstand close

scrutiny. The statute should be upheld if the

Court determines it advances compelling state

interests, that it accomplishes’ important

state goals, and that it does not unduly

burden constitutional rights of political

parties and their members. However, if the

Court determines the statute is unnecessarily

oppressive, it should declare it to be uncon-

Stitutional. Id.; McLain v. Meier, 637 F.2d

1163.

Challenged Provisions of the Wyoming Election

Code:

W.S. Section 22-1-102(g) (1977) defines the

term "political party," stating "'Political

party' is a party whose candidate for repre-

sentative in the congress [sic] of the United

States received at least ten percent (10%) of

the total vote cast at the last preceding

election." Candidates for partisan political

offices are either nominees of such "political

arties," or are deemed to be "Independent

andidates," which is defined by Section 22-1-

02(f) as "a person who is running for nomin-

ition or election to a publie office but who

loes not represent a political party."

Section 22-5-101 provides for only two

rans by which a candidate may be nominated

or partisan offices filled at a general elec-

ion. One is by primary election under

rections 22-5-201 to 22-5-215, which is only

ivailable to "political parties" as defined

ibove. A political party at a primary

‘lection may nominate an entire slate of can-

lidates for publie office for the next sub-

sequent general election without being

equired to show any modicum of support for

iny individual nominee. Section 22-6-101.

‘he other means is by nomination as an inde-

endent candidate through a petitioning

rocess provided in Sections 22-5-301 to 22-5-

08. In order to obtain ballot access by

etition each potential candidate must file a

- 99 -

sparate petition supported by signatures of

sgistered electors numbering at least five

5%) of the numer of votes cast for represen-

ative in congress in the last general elec-

ion in the political subdivision for which

ne petition is filed. Section 22-5-301.

uch petitions may be circulated for signa-

ures only during the calendar year in which

he election for the office sought is to be

eld. Section 11-5-305(a). The petition must

e filed not more than ninety (90) days nor

ess than forty-five (45) days before a

eneral or special election. Section 22-5-

7. If a potential candidate succeeds in

>taining ballot access sunder Sections 22-5-

J1 to 22-5-308 he will be listed as an inde-

endent candidate upon the partisan general

lection paper ballot. Section 22-6-

20(a)(vii). Candidates nominated by polit-

tal parties through primary elections are

isted on said ballot according to party

ffiliation, which affiliation is clearly set

- 100 -

rth upon the ballot. Sections 22-6-

O(a)(vi), 22-6-116, 22-6-121.

No other means for ballot access in

rtisan general elections are provided in the

oming Election Code. Thus, by implication,

new political party, or a minor political

rty, may obtain party access to the ballot

ly by the following means:

(A) Such party must file a petition on

half of their candidate for representative

. Congress supported by signatures of regis-

red electors numbering at least five percent

the number of votes cast for representative

| Congress in the last general election for

e State of Wyoming at least forty-five (45)

ys prior to the next general election.

(B) Such party's candidate for representa-

ve in Congress, who will be designated as an

dependent candidate upon the partisan gen-

al election ballot, must receive at least

™ pereent of the votes cast for such office

| the general election.

- Wi-

quirements of Section 22-1-102(g) and will

come a "political party" within the meaning

the Wyoming Election Code. If the party

en complies with the requirements set forth

Chapter 4 of the Wyoming Election Code

neerning election of officers and central

mmittees, conventions and other meetings,

ch minor party will be entitled to conduct

imary elections two years later prior to the

xt general election (barring a_e special

ection) and will be entitled to sponsor a

ll slate of candidates, to adopt a party

atform, and to have its candidates desig-

ted by party affiliation upon the partisan

neral election ballot for such general

ection.

Furthermore, members of minor political

rties are required to register as indepen-

nts or nonpartisans under the provisions of

e Wyoming Election Code unless and until the

nor party obtains "party" status pursuant ot

- 102 -

the procedures set forth above. Sections 22-

3-103, 22-3-104(a), 22-6-101, 22-6-108. Until

such time members of minor political parties

are designated as independents or nonpartisans

upon the official electors registry lists.

Section 22-3-108(a)(iv).

The most notable feature of the Wyoming

Election Code in this regard is the absence of

any current means by which a new or minor

political party may gain access to the ballot

except as independent candidates. It is con-

ceivable under the provisions of the Election

Code that a new political party could foster

support of 50% or even 100% of the electorate

of the State of Wyoming during an election

year and yet its candidates for public office

would still be denominated as’ independent

candidates upon the ballot for purposes of the

next general election.

In addition to those set forth above, the

following benefits inure to "political

parties" under the Wyoming Election Code:

- 103 -

(a) The county clerk in each county is

required to publish and post a notice of an

upcoming primary election at the county's

expense pursuant to Section 22-2-109 (1977).

No similar benefit is given independent candi-

dates.

(b) Political party central committees,

and officials thereof, on request, may obtain

computerized voter registration lists under

Section 22-2-113(a). In addition three copies

of registry lists are automatically forwarded

to the county chairman for each political

party ten days prior to any election. Section

22-3-109(a) (1983). A minor party may obtain

computerized voter registration lists by means

of a candidate's campaign committee or polit-

ical action committee, Section 22-2-113(a), or

may review copies of registry lists posted

publiely within the county courthouse.

Section 22-3-109(b). However, as was noted

above, such lists designate electors either as

nonpartisans or according to party

- 104-

affiliation, if declared. Similarly the state

abstract prepared after each general election

breaks down voting data according to party

affiliation as designated upon the registra-

tion lists. Section 22-16-116. Section 22-3-

108(a) (iv). Thus, the minor party is left

with the distinct disadvantage of having to

find means by which to ascertain which

electors, identified as nonpartisans, in fact

are aligned with its position, and which are

not.

(ec) Candidates for publie office who are

affiliated with a recognized "political party”

may file an application for nomination or

election prior to a primary election without

being required to file supporting signatures

of qualified electors as is required with

independent candidates. Section 22-5-

204(a). Such filing must be made at least

fifty-nine (59) days before the date of the

next subsequent primary election. Section 22-

5-209 (1983).

- 105 -

(d) The board of county commissioners is

required to notify the county chairman of each

political party concerning proposed changes in

precinct boundaries, or of proposed consoli-

dation or division of precincts at least one

month and fifteen days prior to adoption of

the proposal, and is further required to send

a certified copy of resolutions adopting such

changes to such chairman at least five days

after adoption of the same. Sections 22-7-

102, 22-7-103. All other interested persons,

including minor party members, receive notice

under the general requirement that proposed

changes be published in a newspaper of general

circulation within the county once a week for

three consecutive weeks prior to the first

meeting at which such proposals will be taken

up. Section 22-7-102.

(e) Judges of election and counting boards

and alternatives are selected oy the board of

county commissioners in each county solely

from lists of registered resident electors

- 106 -

submitted by the county chairman of each po-

litical party, and serve a term of at lest two

years after their selection. Section 22-8-

101, 22-8-102, 22-8-104. Each political party

is assured equal party representation among

judges of election or counting boards. Sec-

tions 22-8-108(b), 22-8-109. Independent

candidates and minor parties are not permitted

to nominate electors for such positions.

(f) Before preparing a voting machine, or

an electronic voting device for an election

the county clerk of each county is required to

zive written notice to the county chairman of

ech political party having a candidate on the

ballot stating the time and place where such

nachine or device will be prepared. Repre-

sentatives of the political party are entitled

to be present to have the machine or device

prepared in their presence and to verify

proper preparation by signing the seal placed

upon the envelope containing the keys to

machines which have been tested, prepared,

- i

locked and sealed. Sections 22-10-108(a), 22-

11-104(b) (111), 22-10-109(a), 22-10-110.

independent candidates may also be present and

ire also entitled to have the machine prepared

in their presence, and to sign such

snvelope. However, no notice requirement is

set forth pertaining to independent candi-

jJates.

(g) The county chairman of each political

sarty is authorized to certify challengers to

serve in each precinct. Section 22-15-102.

Similarly a county canvassing board is com-

orised of the county clerk and two (2)

electors whe must be members of different

political parties who are appointed by the

board of county commissioners. Section 22-16-

101. Such canvassing board is vested with

substantial authority under the Wyoming

Eleetion Code. Accord, Sections 22-16-102 to

22-16-120. Independent candidates and minor

barties are not permitted to nominate electors

for such positions.

- 108 -

(h) Should a vacancy in the office of

epresentative in Congress occur under the

rovisions of the Wyoming Election Code the

tate central committees of the respective

arties are entitled to nominate an elector

ualified to hold such office as their candi-

ate to fill such office for the unexpired

erm, Section 22-18-106. By implication an

ndependent candidate may also obtain ballot

ecess for such office. Section 22-18-107.

owever, no means by which access may be ob-

nined is specifically set forth, and there-

ore it must be presumed that an independent

andidate may obtain access only by the

etition procedure set forth in Sections 22-5-

01 to 22-5-308. However, under Section 22-

8-107 the petition must be completed and

iled, along with suporting signatures, within

wenty (20) days after the vacancy’ is

eclared. Furthermore, a candidate for the

nexpired term may only seek election as a

andidate of the political party in which he

- 109 -

was registered on the date the vacancy

occurred. Section 22-18-108.

(i) Should a vacancy in the office of a

member of the State Legislature occur, the

county central committee of the political

party to which the last incumbent belonged is

authorized to select three persons qualified

to fill the vacancy as its nominee to fill the

office for the unexpired term. Such names are

then transmitted to the board of county com-

missioners who must then appoint one of the

three nominees to fill the vacancy. Section

22-18-111 (1983). No apparent means exist

within the Election Code to fill vacancies in

such offices previously held by incumbents who

were not affiliated with 4 recognized

political party.

(j) The state convention of each political

party nominating candidates for President and

Vice President of the United States is

authorized to nominate the party's candidates

for presidential electors, the names of which

~116-

are then filed with the secretary of state.

Section 22-19-102. Should a vacancy in the

nomination for the office of presidential

elector occur, vacancy may be filled by the

state central committee of the political party

by certifying the name of the person filling

the vacancy with the secretary of state.

Section 22-19-105. No apparent means exist

within the Wyoming Election Code whereby an

independent candidate or unrecognized minor

political party may nominate presidential

electors, or may fill vacancies in_- such

positions.

(k) (1) A recognized political party is

authorized to raise, collect and expend money,

or other things of value on behalf of its

candidates for public office and is aiso

authorized to aid in the election of its can-

didates for publie office. 22-25-102(a),

(b). An unrecognized minor political party

may undertake these activities only through

the vehicle of a "political action committee"

~ fig -

or a “candidates campaign committee." Id.

Such committees may be formed, however,

through simple filing procedures. Section 22-

25-101(b). The Code sets ceiling limits upon

contributions to a eandidate, or to his

campaign committee, but does not limit con-

tributions to political parties, and does not

limit expenditures by a political party made

on behalf of candidates it supports. or

sponsors. Section 22-25-101(¢c), (e) (1983).

(2) The Code establishes accounting

and reporting requirements concerning campaign

related receipts, expenditures and obligations

for any candidate in any election. Sections

22-25-103 to 22-25-114. Noncompliance with

such provision subjects offenders to criminal

charges, and to the risk of forfeiture of the

candidate's certificate of nomination or of

election if the candidate won the election.

Sections 22-25-105, 22-25-108, 22-25-1114.

Generally speaking such provisions are equally

applicable whether a candidate is affiliated

- fis

with a political party or is classified as an

independent candidate. However, the provision

makes various distinctions between party

affiliated and independent candidates which

tend to make the reporting requirements for

independent candidates more onerous than those

for party affiliated candidates. Staff and

postage expenses and, in most cases, adver-

tising expenses incurred by a political party

central committee while promoting its candi-

dates are not "identifiable expenses" as the

term is defined by the Code. Sections 22-5-

103(a), (b), and (ce). Thus, such expenses

need not be set forth in a party-candidate's

financial report. Section 22-25-106(a). The

same rule does not apply to "political action

groups" or to a "candidate campaign

committee." Reports filed by political action

committees or by candidate campaign committees

must be filed under oath by both the chairman

and treasurer of the committee. Section 22-

25-106(¢c). Reports filed by political party

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central committees need not be filed under

oath. Section 22-25-106(d). The report of a

political action committee or candidate

campaign committee, if it pertains to more

than one candidate, must attribute receipts,

expenditures or obligations to each candidate

itemized separately. Section 22-25-106(c).

However, a report of a political party's cen-

tral committee need not attribute expenses

except where such expenses can be specifically

identified to a specific candidate to the

exclusion of other candidates on the ticket.

Section 22-25-106(d). Finally, political

action committees must continue to file finan-

cial reports every six months until all debts

incurred in a campaign are paid. Section 22-

25-106(b). Upon payment of all debts the

committee automatically terminates. Id.

Conversely, no ongoing reporting requirements

are established for political parties, and,

Obviously, a political party does not auto-

matically terminate upon payment of debts

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incurred in a campaign, and thus need not

refile for recognition prior to each new cam-

paign.

It is true that a variety of sections with-

in the Wyoming Election Code indicate that its

drafters intended that minor parties could

obtain recognized party status under its

terms. Sections 22-6-114, 22-6-118(a), 22-6-

120(a)(viii)d, 22-10-110(a) (ix), 22-11-104(a),

but we must conclude that most provisions

within the Code assume the existence of a two-

party system consisting of Democratic and

Republican parties. Sections 22-4-117, 22-5-

303, 22-%-108(b), 22-13-104(a).

Balancing Analysis.

Defendants have not denied that the ballot

access provisions in question implicate

Plaintiffs' fundamental rights secured by the

First and Fourteenth Amendments. Nor do the

Plaintiffs deny that the State of Wyoming

sought to further legitimate State interests

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through the restrictions upon ballot access

challenged herein. Reasonable classifications

whieh turn upon the political party's success

in prior elections, and level of support re-

quirements are not invalid per se. Arutunoff

v. Oklahoma State Election Board, supra at p.

1378. A state furthers its important

interests when it requires a demonstration of

a modicum of support for a party before grant-

ing official recognition. Id. at p. 1379;

Clements Vv. Fashing, supra; Jenness Vv.

Fortson, 403 U.S. 431, 442 (1971). Such re-

quirements protect the efficiency of election

processes, protect against frivolous or

fraudulent condidacies, avoid the expense and

burden of run-off elections, and avoid voter

confusion which may result from overcrowded

ballots. Id. 3; Williams v. Rhodes, supra.

However, notwithstanding this interest, a

State's election laws cannot operate to freeze

the political status quo.

"They must recognize that there is a

constant fluidity in the fortunes of

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political parties particularly minor

parties. The courts have invalidated

state ballot access laws that are op-

peressive and make it virtually impos-

sible for any but the two major parties

to achieve ballot positions for their

candidate." Arutunoff v. Oaklahoma

State Election Board, supra at p. 1378.