# Appendix — Libertarian Party of Louisiana v. Brown > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2870%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1984 - **Citation:** 469 U.S. 825 ## Text Office - Supreme Court, U.S # FILE 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, v. 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- a ae |: we a =e = > yee wih? 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, -7- pam Sah apaadis ows 8 TT 2G. weaa cen r ask fea £2 See 5 SME EMT es bey seat el el ae é PETE = fe 34d aah: af Rue Rel» neg -tes aces sorely twats) 3 ia Libs Nat eee . 5 Ene cela = Sens Ihe 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...." i! ty” ate —~ ip = Sa - 9 a - ape > Wives OES - eae be 1 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 Le OE en ee Dee 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- Piel Oi aor’ a tg Ls > ag ‘Hess oy alas, 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- OE AEA EN OLE LI LIEGE EEN ES CDE REE ° allie a -_ a el a ee i eee aa! ae See pm GE IE LN OM OG Of TR ES a a 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- i a3 “ . f «a ‘ ne re A Sans es as : Lg iE es ee = BO? Bt oe } : nt st 1 eee ar (20 he es) q te Yes yp Mee VS oes oii os Sit eres eh baie (eed? ae? bid é jariteuscpe aR. ecenl” “ee te pape Pe nd 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 - a 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- ee 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 26 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 - ws 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 30 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 © appellants, the burdens placed upon them to 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 ee 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, ee 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- (C) At this point the party will meet the 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 - iis central committees need not be filed under oath. Section 22-25-106(d). The report of a political acti [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2870%3A2. Public record. Not legal advice.