Amicus Curiae Brief — Munro v. Socialist Workers Party

Supreme Court, U.S,

FILED

APR 28 jaR6

JOSEPH F. SPANIOL, JR,

CLERK

NO. 85-656

In The

Supreme Court of the Anited States

October Term, 1985

Secretary of State of the State of Washington,

RALPH MUNRO,

Appellant

VS

SOCIALIST WORKERS PARTY, et al

Appellees.

ON APPEAL FROM THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF THE LIBERTARIAN PARTY

OF WASHINGTON AS AMICUS CURIAE

IN SUPPORT OF APPELLEES

JAMES J. FEATHERSTONE *

Santarelli, Smith,

Kraut & Carroccio

2033 M Street, N.W.

Suite 700

Washington, D.C. 20036

(202) 466-6800

RICHARD E. GARDINER

7404 Estaban Place

Springfield, Virginia 22151

* Counsel of Record

THE COPY CENTER, INC. 615 Chestnut Street Philadelphia, PA 19106 (215) 928-1900

TABLE OF CONTENTS

Page

I. THE INTEREST OF AMICUS CURIAE ]

Il. SUMMARY OF ARGUMENT 8

ITI. ARGUMENT 1]

A. The Court of Appeals 1]

Properly Upheld the

Appellees’ Constitu-

tionally Protected

Right to Ballot Access

in Statewide Elections

1. Third Parties Perform ll

Important Functions in

American Politics

2. Meaningful Ballot 15

Access for Third

Parties is Critical to

Their Survival and

Warrants This Court's

Protection

B. The Court of Appeals 24

Properly Found the

Washington Statute's

One Percent Requirement

to be Unconstitutionally

Burdensome As Applied

C. The Court of Appeals

Properly Held that,

Viewed in its Totality,

the Washington Statutory

Scheme is Unconstitu-

tionally Burdensome

IV. CONCLUSION

Appendix A

Affidavit of Bonita L. Olson

37

46

TABLE OF AUTHORITIES

Cases: Page

American Party v. White, 415 36

U.S. 767 (1974)

Anderson v. Celebrezze, 460 passim

U.S. 780, (1983)

Anderson v. Mills, 664 F.2d 27

600 (6th Cir. 1981)

Bergland v. Harris, 767 F.2d 5,17,25

1551 (llth Cir. 1985)

Bradley v. Mandel, 449 FP, 39

Supp. 983 (D.Md. 1978)

Buckley v. Valeo, 424 30

U.S. 1 (1976)

Bullock v. Carter, 405 21

U.S. 134 (1972)

Hudler v. Austin, 419 F, Supp. 35

1002 (E.D.Mich. 1976), aff'd

sub. nom., Allen v. Austin,

430 U.S. 924 (1977)

Illinois Election Bd. v. 18

Socialist Workers' Party,

440 U.S. 173 (1979)

Jenness v, Fortson, 27,36

403 U.S. 431 (1971)

LaRouche v. Crowell, cert, 15

denied, 54 U.S.L.W. 3583

(U.S. March 3, 1986)

(No. 85-1151)

(i)

Libertarian Party v. Bond 5

764 F.2d 538 (8th Cir. 1985)

Libertarian Party v. Davis, 5

601 F. Supp. 522

(W.D.Ky. 1985)

Libertarian Party v. Manchin, 5

W.Va., 270 S.E.2d 634, appeal

dismissed, 449 U.S. 802 (1980)

Libertarian Party of Alabama 5

v. Wallace, 586 F. Supp. 399

(M.D.Ala. 1984)

Libertarian Party of Florida 5

v. State of Florida, 710 F.2d

790 (llth Cir. 1983)

Libertarian Party of Nebraska 5

v. Beerman. 598 F. Supp. 57

(D. Neb. 1984)

Libertarian Party of Oklahoma 5

v. Oklahoma State Election

Board, 593 F. Supp. 118

(W.D.Okla. 1984)

Libertarian Party of South 5

Dakota v. Kundert, 579 F,

Supp. 735 (D.S.PD. 1984)

Libertarian Party of Texas 5

v. Fainter, 741 F.2d 728

(5th Cir. 1984)

Libertarian Party of Virginia 5

v. Davis, 766 F.2d 865

(4th Cir. 1985) cert. den.,

54 U.S.L.W. 3582 (U.S. Feb. 24,

1986) (No. 85-964)

(ii)

Lubin v. Panish,

415 U.S. 709 (1974)

Mandel v. Bradley,

432 U.S. 173 (1977)

Socialist Workers' Party v.

Secretary of State, 412 Mich,

571, 317 N.W.2d 1 (1982)

Socialist Workers' Party v.

Secretary of State, 765 F.2d

1417 (9th Cir. 1985)

Storer v. Brown,

414 U.S. 724 (1974)

Sweezy v. New Hampshire,

354 U.S. 234 (1957)

Tashjian v. Republican

Party of Connecticut,

prob. jur. ntd., 43

U.S.L.W. 448 (U.S.

January 13, 1986)

Wesberry v. Sanders,

376 U.S. 1 (1974)

Williams v. Rhodes,

393 U.S. 23 (1968),

Constitutional Provisions

Amendment I

Amendment XIV

(iii)

21

passim

18

18

State Statutes

Fla. Stat. Ann. § 103.021(3)

(West 1986)

Ind. Code. Ann. § 3-l-ll-=1

(West 1985)

Kan. Stat. Ann. § 25-305

(1985)

La. Rev. Stat. Ann,

§ 18:401, (West 1986)

La. Rev. Stat. Ann,

§ 18:511 (West 1986)

Me. Rev. Stat. Ann. tit 21A

§ 354.8-A (1985)

N.C. Gen. Stat. § 163-122

(1982)

Okla. Stat. Ann. tit. 26

§10-101.1 (West 1985)

Tex. Code Ann. § 181.005(a),

(Vernon 1986)

Tex. Code Ann,

§ 181.061l(c) (Vernon 1986)

Wash. Rev. Code Ann,

§ 29.18.030 (West 1986)

Wash. Rev. Code Ann,

§ 29.18.110 (West 1986)

(iv)

45

45

45

35

45

45

45

45

45

13

Wash. Rev. Code Ann.

§ 29.24.020 (West 1986)

Wash, Rev. Code Ann.

§ 29.24.020 (West 1965)

(amended 1977)

Wash, Rev. Code Ann.

§ 29.24.030 (West 1965)

(amended 1977)

Wash. Rev. Code Ann,

§ 29.24.040 (West 1965)

(amended 1977)

Wash. Rev. Code Ann.

§ 29.30.100 (West 1965)

(amended 1977)

Other Authorities

Almanac of American Politics

(1978)

Black's Law Dictionary.

(4th Ed. 1968)

"Developments in the Law-

Elections," 88 Harv.

L. Rev. llll (1975)

Elder, “Access to the Ballot

by Political Candidates,"

18 Dick. L. R. 387 (1979)

43

33

14,18

12,15

30,42

Frampton, “Challenging

Restrictive Ballot Access

Laws on Behalf of the

Independent Candidate,"

10 N.Y.U. Rev. L. & Soc,

Change 131 (1981)

Malcolm, “LaRouche Illinois

Drive Focused on Rural

Areas, "N.Y. Times, A 14,

March 31, 1986

Malcolm, "Stevenson Hopes

to Run for Illinois Governor

as Independent," N.Y. Times,

A 16, March 28, 1986

Note, “Ballot Access Laws

in West Virginia - A Call

for Change," 87 W. Va. L. R.

809 (1983)

Note, “Better Late Than Never:

The John Anderson Cases and

the Constitutionality of

Filing Deadlines,"

ll Hofstra L. R. 691 (1983)

Note, "The Supreme Court,

1968 Term,” 83 Harv. L. Rev.

60 (1969)

Note, "The Supreme Court,

1982 Term," 97 Harv. L. Rev.

70 (1983)

L. Tribe, American

Constitutional Law (1978)

(vi)

14,44

14,44

14

1]

15

23

Statistics of the Presidential

and Congressional Election

Of November 7, 1972

(U.S.G.P.0. 1973)

Statistics of the Presidential

and Congressional Election of

November 2, 1976 (U.S.G.P.0.

1977)

Statistics of the Presidential

and Congressional Election of

November 4, 1980 (U.S.G.P.0O.

1981)

Statistics of the Presidential

and Congressional Election of

November 6, 1984 (U.S.G.P.0,.

1985)

(vil)

I. THE INTEREST OF AMICUS CURIAE

This case is of vital concern to

the Libertarian Party of Washington

("the Party") which was formed in 1972

and has since participated in every

election in the state.—/ Until the 1980

l/ te Party is filing this brief in support of

the position of Appellees. Roth parties have

consented to its filing and the consents are

filed with the Court.

The Party is a state affiliate of the

National Libertarian Party, which was formed in

Colorado in 1971. The National Libertarian

Party's history closely parallels that of its

Washington state affiliate. The national party

achieved steady increases in candidacies and

voter support until the 1984 election, when

increasingly burdensome ballot access laws

crippled the Party's campaigns acress the coun-

try.

Presidential State Rallot Popular

Elec. Yr. Listings Votes

1972* 3 2,691

1976** 31 171 ,627

1980*** 50 920,049

LORgtees 40 227,204

(Cont'd)

United States Senatorial campaign, the

Party, like other “third” parties, was

able to offer its candidates for state-

wide offices to the voters in the

general election. For example, in 1976,

the Party's candidate for the United

States Senate, Richard K. Kenney, ap-

peared on the general election ballot in

November, pursuant to then applicable

ballot access statutes which provided

for third party nominations by conven-

tion, and for general election ballot

Sources:

*Statistics of the Presidential and Congres-

Sional Election, (hereinafter “Statistics") of

November 7, 1972, p. 52 (U.S.G.P.0. 1973);

**Statistics of November 2, 1976, p. 56,

(U.S.G.P.0. 1977);

***Statistics of November 4, 1980, p. 72,

(U.S.G.P.0. 1981); and

****Statistics of November 6, 1984, p. 69

(U.S.G.P.0. 1985).

Ths resulting ballot access cases are summarized

at page 5 below,

e3-«

access by voter certificates,2/

In 1977, however, the Washington

Statutes were amended to include the one

percent primary vote requirement that is

now being complained of by the Socialist

Workers Party ("SWPP") in this case. In

1980, Richard K. Kenney was again the

Party's candidate for U.S. Senator.

Despite his personal qualities and prior

experience as a candidate, and his dili-

gence as a campaigner, Mr. Kenney was

unable to appear as a candidate on the

general election ballot because of the

one percent requirement in the statute

as amended in 1977,3/

2/ see Wash. Rev. Code §§ 29.24.020; 29.24.030;

29.24.040; 29.30.100 (1965) (amended 1977). See

also Socialist Workers Party v. Secretary of

State, 765 F.2d 1417, 1418 (9th Cir. 1985).

3/ The background of the 1980 Kenney campaign

is set forth more fully in the Affidavit of

Bonita L. Olson, attached hereto as Appendix

"A.

Like the SWP, the Libertarian Party

of Washington is also unquestionably a

serious political party offering a

thoughtful alternative to the two major

parties' philosophies and candidates.

As such, the Party has already been, and

will likely continue to be, as directly

affected as has the SWP by the restric-

tive ballot access statute involved in

this appeal. Under the one percent

requirement there may not be another

Statewide opportunity for the Party's

candidates to educate and inform the

voters about their views on the issues,

the Party's philosophy and its differ-

ences from the major parties.

In this brief, the Party will pre-

sent its experience and positions in

regard to the Washington statute and its

- 5 -

damaging effects on the Party's opera-

tions and prospects. The Party - like

the national Libertarian Party and other

Libertarian Party affiliates across the

count ry4/ - must now seek and support

judicial redress to confront this threat

to its rights and the rights of the

4/ the Libertarian National Committee filed a

Brief amicus curiae in Anderson v. Celebrezze,

460 U.S. 780 (1983). Other Libertarian Party

state affiliates have filed the following access

cases: Bergland v. Harris, 767 F.2d 1551 (llth

Cir. 1985); Libertarian Party v. Bond, 764 F.2d

538 (8th Cir, 1985); Libertarian Party v. Davis,

601 F. Supp. 522 (W.D. Ky. 1985); Libertarian

Party v. Manchin, W.Va., 270 S.E.2d 634, appeal

dismissed 449 U.S, 802 (1980); Libertarian Party

of Alabama _v. Wallace, 586 F.Supp. 399 (M.D.

Ala. 1984); Libertarian Party of Florida v.

State of Florida, 710 F.2d 790 (llth Cir. 1983);

Libertarian Party of Nebraska v. Beerman, 598 F.

Supp. 57 (D. Neb. 1984); Libertarian Party of

Oklahoma _v. Oklahoma State Election Roard, 593

F. Supp. 118 (W.D. Ok. 1984); Libertarian Party

of South Dakota v. Kundert, 579 F. Supp. 735

(D.S.D. 1984); Libertarian Party of Texas v.

Fainter, 741 F.2d 728 (Sth Cir. 1984); and

Libertarian Party of Virginia v. Davis, 766 F.2d

865 (4th Cir. 1985) cert. den. 54 U.S.L.W. 3582

(U.S. Feb. 24, 1986) (No. 85-964).

- 6 «-

5/

voters .— The amicus Party and the SWP

clearly have widely divergent political

philosophies regarding the national

economy, the proper role of government

and the rights of the individual.©/

>/ Others have noted the resource draining

effect of ballot access litigation. See e.g.,

Note, "The Supreme Court, 1982 Term," 97 Harv.

Le. Rev. 70, 163 (1983), citing Frampton,

"Challenging Restrictive Ballot Access Laws on

Behalf of the Independent Candidate, 10 N.Y. U.

Rev. L. & Soc. Change 131, 133 (1981).

&/ See e.g., Appellee's Motion to Affirm or

Dismiss, p. 5 n.2 regarding the philosophy of

the SWP. The basic tenets of the Libertarian

Party of Washington are:

STATEMENT OF PRINCIPLES

We, the members of the Libertarian Party,

challenge the cult of the omnipotent state and

defend the rights of the individual.

We hold that all individuals have the right to

exercise sole daminion over their own lives, and

have the right to live in whatever manner they

choose, so long as they co not forcibly

interfere with the equal right of others to live

in whatever manner they choose,

Governments throughout history have regularly

operated on the opposite principle, that the

(Cont'd)

Whatever their philosophical and politi-

cal differences, however, the interests

State has the right to dispose of the lives of

individuals and the fruits of their labor. Fven

within the United States, all political parties

other than our own grant to government the right

to regulate the lives of individuals and seize

the fruits of their labor without their consent.

We, on the contrary, deny the right of any

government to do these things, and hold that

where governments exist, they must not violate

the rights of any individual, namely, (1) the

right to life - accordingly we _ support

prohibition of the initiation of physical force

against others; (2) the right to liberty of

speech and action - accordingly we oppose all

attempts by government to abridge the freedan of

speech and press, as well as _ government

censorship in any form; and (3) the right to

property - accordingly we oppose all government

interference with private property, such as

confiscation, nationalization, and eminent

domain, and support the prohibition of robbery ,

trespass, fraud, and misrepresentation,

Since governments, when instituted, must not

violate individual rights, we oppose all

interference by government in the areas of

voluntary and contractual relations among

individuals, People should not be forced to

sacrifice their lives and property for the

benefit of others, They should be left free by

government to deal with one another as free

traders, and the resultant econamic system, the

only one compatible with the protection of

individual rights, is the free market.

of the amicus Party and the SWP are, for

once, the same with regard to the con-

Stitutional protection of their funda-

mental rights to exist, to seek ad-

herents and to have the Opportunity to

affect the course of political life in

Our society. This appeal represents a

critical juncture on these issues for

the future of the amicus Party, the SWP

and all other third parties in the State

Of Washington, and likely in other

states as well, should this statute be

upheld,

Ii. SUMMARY OF ARGUMENT

This brief respectfully urges this

Court to affirm the decision of the

Court of Appeals holding Washington Rev.

Code Ann. § 29.18.110 (West 1986) to be

an unconstitutional burden on Appellees’

rights.

This Court and other authorities

have long recognized the important func-

tions performed by third parties in

American politics, as forums for new

ideas, and as release mechanisms for

voters dissatisfied with the positions

and candidates of the major parties.

Point III. A.l.

Because of the critical importance

of meaningful ballot access. for the

future survival of the third parties,

this Court has protected the rights of

third parties, such as those of Appel-

lees and the amicus Party, and their

voters’ access to the hallot. Point

Under this Court's ballot access

jurisprudence, the Court of Appeals

properly analyzed the actual effects of

- 10 -

the Washington one percent requirement

on third party candidacies and concluded

that the requirement was unduly burden-

some, due to its virtually complete

exclusion of third party candidates from

the Washington statewide ballot since

1977. Point III. R.

Similarly, the Court of Appeals

properly concluded _ that, under this

Court's "totality" rule, the Washington

Statutory scheme was also unconstitu-

tionally burdensome because its early

deadline - one of the earliest in the

country - unfairly impacts on third

party candidates who must be nominated

before the major party candidates file

Or are finally nominated. Point III. Cc.

On these bases, this Court should

now affirm the decision of the Court of

Appeals in this case to ensure meaning-

- }]] -

ful ballot access for third parties and

their future ability to perform their

important functions in our. political

system.

III. ARGUMENT

A. The Court of Appeals Properly

Upheld the Appellees' Constitu-

tionally Protected Right to Rallot

Access in Statewide Elections

le Third Parties Perform

Important Functions in

American Politics.

In the context of our emersing

Republic, some of the Framers of the

Constitution were concerned about ours

becoming a political system dominated by

two major parties,—/ Others, however,

}/ "The Supreme Court, 1982 Term," 97 Harv. L.

Rev., 70 at 159, 161 n.37 (concerning James

Madison). See also Note, “Better Late Than

Never: The John Anderson Cases and the

Constitutionality of Filing Deadlines," 11

Hofstra L.R., 691, 692 n.6 (concerning John

Adams).

» 12 «

were concerned ahout excessive "faction-

alizing" or "splintering" of the politi-

: : 8 / ,

cal groups in our society .— This

Court, and other authorities, have noted

the history of these Opposing concerns

in the development of its ballot access

a 9/ one

jurisprudence ,— In acdition, the pro-

gressive "“Short-Rallot" reform movement,

and the subsequent reaction to its poli-

cies favoring broader ballot access,

have also been noted as being relevant

to the question of ballot access for

10/ :;

third parties,— Both of these his-

torical analyses are particularly rele-

8/ ta,

9/ See, e.g., Storer v. Brown, 415 U.S. 724,

735, 736 (1974),

10/ See, e.g., Lubin v. Panish, 415 U.S. 709,

712 (1974). See also Elder, "Access to the

Ballot by Political Candidates." 18 Dick. L.

Rev. 387, 389 (1979) (hereinafter "Elder"),

=» 13 «

vant to this case because of the State

of Washington's argued justifications

for restricting ballot access,tl/

Despite the Framers' concerns on

both sides of the question, and notwith-

Standing the "Short Ballot" movement,

third parties have long been part of

American political life. Throughout our

history, third parties have served a

variety of useful purposes including

providing forums for new, sometimes

unpopular, ideas and by acting as

“safety” or "release" mechanisms, parti-

cularly in times of great social and

12/

political stress.—< More recently,

il/ The State's arguments for the one percent

requirement - demonstrating canmunity support

and lessening voter confusion - will be more

fully discussed helow.

12/ this Court and other authorities have long

recognized these important functions of the

third parties in American society. See €.g-,

(Cont'd)

- 14 «

third party "alternatives" have provided

platforms focusing voter discontent with

the major parties positions on national

issues,13/ Without this so-called

"safety valve," the "“splintering" and

"factionalization" that concerned some

cf the Framers is rather more likely to

occur than not .4/ Ensuring third par-

Sweezy v. New Hampshire, 354 U.S. 234, 250-1

(1957); Anderson v. Celebrezze, 460 U.S. 780, at

794 (1983) and the Brief amicus curiae of the

American Civil Liberties Union in Anderson, App.

5A regarding the "safety valve" role of third

parties. See also Elder. op. cit, at p. 392

("release valve") and “Developments in the Law -

Elections," 88 Harv. L. Rev. 1lll, 1123 (1975)

(third parties “perform important functions in

the political process" and provide "an outlet

for frustration." )

13/ See, €.g., Note, "Ballot Access Laws in

West Virginia - A Call for Change," 87 W. Va. L.

R., 809, 814 (1985).

14/ The recent developments in the Illinois

Democratic primary provide a current example of

this result. See Malcolm, “Stevenson Hopes to

Run for Illinois Governor as Independent,” N.Y.

Times, A 16, March 28, 1986 and Malcolm,

"LaRouche Illinois Drive Focused on Rural

Areas," N.Y. Times, A 14, March 3l, 1986. See

(Cont 'd)

- 15 -

ties real access to the ballot is, how-

ever, a necessary prerequisite to their

continued functions as a means of fos-

tering innovation and of ensuring peace-

ful, productive dissent 12/

2. Meaningful Ballot Access

for Third Parties is

Critical to their Survival

and Warrants this Court's

Protection,

In its opinion, the Court of

Appeals correctly followed this Court's

precedents in finding Washington Rev.

Code section 29.18.110 (West 1985) un-

constitutional as unduly burdensome on

also, LaRouche v. Crowell, cert. denied, 54

.S.L.W. 3582 (U.S. Mar. 3, 1986) (No. 85-1151).

13/ See Elder, op. cit, p. 392 ("If serious

minor candidates representing such (new and

unpopular) views were denied an electoral forum

because they were precluded from placement on a

ballot, then dissident pressure might explode in

more destructive, less legitimate ways."). See

also, Note, “The Supreme Court 1968 Term," 83

Harv. L. Rev. 60, 89 (1969) (third parties

provide a “peaceful means to be heard").

- 16 -

the First and Fourteenth Amendment

rights of the Appellees here. 765 F.2d

at 1418, This Court's decisions on

ballot access; clearly support this find-

ing by the Court of Appeals:

In the present situation,

the state laws place burdens

on two different, although

overlapping, kinds of rights -

the rights of individuals to

associate for the advancement

of political beliefs, and the

right of qualified voters,

regardless of their political

persuasion, to cast their

votes effectively. Both of

these rights, of course, rank

among our most precious free-

doms. We have repeatedly held

that freedom of association is

protected by the First Amend-

ment, And of course this

freedom protected against

federal encroachment by the

First Amendment is’ entitled

under the Fourteenth Amendment

to the same protection from

infringement by the States,

Williams v. Rhodes, 393 U.S. 23, 30

(1968)

By carefully applying the analytic

process established by this Court in

» 17 «

Anderson v. Celebrezze, 460 U.S. 780

(1983), the Court of Appeals properly

concluded that the record in this case

demonstrated “that Washington's ballot

access law seriously impinged upon these

protected rights” and that the state

"had failed to present an interest sub-

stantial enough to warrant the restraint

imposed on those rights." 765 F.2d at

1422. In reaching these conclusions,

the Court of Appeals relied on Anderson

and other ballot access decisions of

this Court in a manner consistent with

relevant decisions of other federal

16/ ' ;

courts ,.<$— As noted, in its stiil-deve-

loping ballot access jurisprudence, this

Court has emphasized both the associa-

tional and free choice aspects of these

16/ See, e.g., Rergland v. Harris, 767 F.2d

1551 (llth Cir. 1985).

- 16 «

cases while basing its "conclusions

directly on the First and Fourteenth

Amendments," Anderson, 460 U.S. at 786

n.7. The Washington statutory scheme,

by effectively denying ballot access to

third parties, has particularly grave

implications for such emerging parties.

Access to the ballot is particularly

critical to third parties as a means of

217/

"disseminating ideas"=—“ and, thus, to

the future potential for such parties -

ii/ See, e.g., Illinois Election Bd. v.

Socialist Workers Party, 440 U.S. 173, 186 ("an

election campaign is a means of disseminating

ideas as well as attaining political office....

Over-broad restrictions on hallot access jeopar-

dize this form of political expression.") See

also, “Developments in the Law - Elections," 88

Harv. L. Rev. 1111, 1123 (1975) ("Without this

(third party) alternative, dissatisfied voters

who find themselves repeatedly confronted with

unattractive policies and candidates may come to

doubt the legitimacy of the entire electoral

process, It is therefore plain that the

importance of independent and minor party

candidates transcends their ability to capture

electoral office.")

» 19 «

whatever the outcome of the instant

elections involved. This concern is

also consistent with this Court's own

decisions on these issues:

New parties struggling’ for

their place must have the time

and opportunity to organize in

order to meet reasonable re-

quirements for ballot posi-

tion, just as the old parties

have had in the past,

Williams, 393 U.S. at 32.

Similarly, in Anderson, this Court noted

this dissemination function of ballot

access rights so critical to emerging

parties:

The exclusion of candidates

also burdens voters’ freedom

of association because an

election campaign is an effec-

tive platform for the expres-

sion of views on the issues of

the day, and a candidate

serves as a rallying-point for

like-minded citizens.

Anderson, 460 U.S. at 787-8. (emphasis

added).

- 20 «

As the Court of Appeals found in

this case, the Washington statutory

scheme “deprives citizens of the oppor-

tunity to organize, campaign and vote

Outside the framework of the dominant

political parties." 765 F.2d 1422 (em-

phasis added). All three activities in

this process are directed toward the

"basic incentive" of participation in

the election of candidates. Thus, Wash-

ington's elimination of all real ballot

access deprives its third parties "“of

much of the substance, if not the form,

of their protected rights." Williams v.

Rhodes, 393 U.S. at 41 (Harlan J., con-

curring). Without the present availabi-

lity of such a “basic incentive" of

participation, these parties may not

have a future in the State of Washing-

ton.

- 2] -

On another issue of great relevance

to third parties, in its ballot access

jurisprudence this Court has also empha-

sized the fundamental nature of "the

right of qualified voters, regardless of

their political persuasion, to cast

their votes effectively.” Williams v,

Rhodes, 393 U.S. at 30 (emphasis ad-

dea) .28/ The right to vote, by itself,

would be meaningless to adherents of

third parties unless the laws also pro-

vide “voters the opportunity to vote for

the candidates of their choosing."

Bullock v. Carter, 405 U.S. 134 at 144

(1972).

18/ See also Wesberry v. Sanders, 376 U.S. l,

17 (1964) ("No right is mre preciaus in a free

country than that of having a voice in the

election of those who make the laws under which,

as good citizens, we must live. Other rights,

even the most basic, are illusory if the right

to vote is undermined.")

- 22 «-

Thus, the State of Washington, by

merely granting the SWP and its voters

the right to “organize, campaign and

vote" in what is, for them, an essen-

tially meaningless "blanket primary,"

has not satisfied even the rudiments of

true ballot access. Clearly, this, at

best, merely preliminary access to third

party candidates by the voters “has

diminished practical value if the party

can be kept off the ballot." Williams

v. Rhodes, 393 U.S. at 30 (1968). In

other words, the voters of Washington

seeking to express their preference at

the polls for third party candidates in

statewide contests since 1977 have in-

deed found that, with a sole exception

in 9 years, their "vote may be cast only

for major party candidates at a time

when other parties ... are clamoring for

« 23 «

a place on the (statewide) ballot."

Williams v. Rhodes, 393 U.S. at 31 (par-

enthetical added).

The Washington statutory scheme, by

its almost total exclusion of third

party candidates, violates one of the

most basic tenets of true ballot access:

It is to be expected that a

voter hopes to find on the

ballot a candidate who comes

near to reflecting his policy

preferences on contemporary

issues,

Lubin v. Panish, 415 wv.8. 709, 716

(1974).

As this Court noted in Anderson,

this near complete exclusion of any such

alternative candidate surely justified

the careful examination by the Court of

Appeals.+2/ Clearly, by this Court's

19/ See Anderson, 460 U.S. at 793, n.15

quoting, with approval, L. Tribe, American

Constitutional Law, (1978) 774 ("But courts

(Cont'd)

- 24 -

precedents, the State of Washington's

Statutory scheme - including the "total-

ity of the so-called one percent re-

quirement and the early deadline for

third party candidates" - when viewed in

toto vitiates the Appellees' ballot

access rights completely.

B. The Court of Appeals Properly Found

the Washington Statute's One Per-

cent Requirement to be Unconstitu-

tionally Burdensome As Applied

In making its determination that

the one percent requirement was uncon-

Stitutionally burdensome, the Court of

Appeals examined the record of state

elections before and after the 1977

amendment adding the restriction,22/ In

quite properly ‘have more carefully appraised

the fairness and openess of laws that determine

which political groups can place any candidate

of their choice on the ballot.'")

20/ 765 F.2d at 1419-20. This examination of

(Cont'd)

» 28 «

its actual application, the one percent

requirement fails to meet constitutional

muster under any rubric or factual stan-

dard derived from this Court's” and

others' relevant ballot access prece

dents,

Despite the mass of data provided

by the State - much of it irrelevant to

the statewide election issue - even the

State admits that only one third party

candidate has appeared on the statewide

ballot since 1977,21/

actual results is consistent with this Court's

approach in Mandel v. Bradley, 432 U.S. 173, 178

(1977). See also Rergland v. Harris, 767 F.2d

1551, 1555 (llth Cir. 1985).

21/ This admission by the State appears in

various forms:

That success (in achieving the bal-

lot) has been samewhat less with

respect to statewide offices,

Juris. State., p. 6. .

(T)hey (the third parties) have not

been successful at qualifying candi-

dates for the state general election

ballot for statewide offices, such as

(Cont'd)

~

- 26 -

Based on these statements and the

Court of Appeals' own analysis, 765 F.2d

1419, the existence of an impermissible

“freeze” on third party candidates in

Washington is beyond argument ,22/ By

U.S. Senate,"

Juris, State., p. 6 quoting the Affidavit of

Supervisor of Elections, Donald F. Whiting, Ex.

A, De De

Two candidates appeared on the (1984)

general election ballot for statewide

office, one being a minor party

candidate and the other an indeper-

dent.

Appellant's Brief, p. 9.

To be sure, most of these (third

party) candidates were running for

positions which were elected in less

than statewide areas, For statewide

offices, minor party candidates have

not done well since 1977,

Appellant's Brief, p. 22. (emphasis added) See

also Appellee's Motion to Affirm or Dismiss, Dp.

8 ("(T)hrough 1984, only eight third party

candidates even attempted to qualify, and seven

of those were eliminated by the new restric-

tions.").

22/ Given that only one third party candidate

in Washington has been permitted to appear on

the statewide general ballot since 1977, the

"blanket" primary and the- one _ percent

(Cont'd)

» 27 «

contrast, nothing that the State pre-

sented to the Court of Appeals or to

this Court by way of justification can

conceivably excuse the fact that third

party candidates have been "“substantial-

ly barred” from the Washington general

election ballot since 1977 by the one

23/

percent requirement ,<=—

The State's main arguments below in

requirement can also readily be described as

“obstacles” (Williams v. Rhodes, 393 U.S. at 25,

n.l) or an “entangling web" (Jenness v. Fortson,

403 U.S. 431, 437 (1971)) thus “chilling,”

(Anderson v. Mills, 664 F.2d 600, 609 (6th Cir.

1981)) “crippling” (Williams, 393 U.S. at 33),

or “suffocating” (Jenness, 403 U.S. at 438)

third party ballot access so as to make such

access "virtually impossible” (Williams, 393

U.S. at 24) or “merely theoretical" (Jenness,

403 U.S. at 431). Similarly, the resulting

exclusion of third party candidates can quite

accurately be described as a “camplete monopoly"

(Williams, 393 U.S. at 32) by the two major

parties which thus have a "decided advantage"

over these newer parties (Williams, 393 U.S. at

31).

23/ 765 F.2d at 1419. See also 765 F.2d at

1421 ("Indeed, we can think of no _ state

interest, and the authorities suggest none, that

would necessitate the virtually coamplete

exclusion of seriqus-minded minor parties

seeking access to the hallot.").

- 28 -

attempting to justify its statutory

scheme were merely repititions of two

now familiar themes in ballot access

cases: ensuring sufficient community

Support and preventing voter confu-

sion, As the Court of Appeals noted,

ensuring community support cannot by

itself justify the one percent require-

ment for ballot access, 765 F.2d

1420, A denial of access can only he

justified by furtherance of other legi

imate state interest such as preventing

voter confusion. Here, as the Court of

Appeals found, there is no evidence of

any such voter confusion which would

justify the “substantial forclosure of

minor parties from the general election

ballot." 765 F.2d 1420.

In its Jurisdictional Statement and

its Brief to this Court, the State re-

peats these themes, arguing first that

"diligent" and "“attractive" candidates

@ 29 «

can and have met the one percent re-

quirement “in congressional and local

races," (Juris. State. p. 10) and then

that “a reasonably diligent candidate,

with a reasonably appealing campaign,

can surely meet Washington's one percent

requirement, as the history of minor

party and independent candidates

shows, "24/ Appellant's Brief, p. ll.

Again, the State is merely attempting to

justify its own “draconian” solution to

its perceived "voter confusion" by

"counterarguing” ahout the lack of dili-

gence or appeal of the third party can-

didates to save a system which has had

only one minor party statewide candidate

since 1977,22/ Here, the “remedy” far

24/ See, on these issues, the Affidavit of

Bonita L. Olson, attached hereto as App. A.

23/ Campare, Appellant's Brief, p. 22 ("(T)he

1977 change appears to have reduced the wide

proliferation of minor party participation in

November general elections .... And this is

(Cont'd)

= 30 -

exceeded the perceived "problem" ,2°/

As the State concedes, the Washing-

ton “blanket” primary and general elec-

probably as the legislature intended.") With

765 F.2d at 1419 ("There is same indication that

Washington's legislature simply underestimated

the adverse impact of the statutory revision

upon minor party access to the general election

ballot.")

26/ tn its Brief, at p. 19, n.10, the State

also attempts to justify the one percent re-

quirement by relying on the five percent minimum

in the Federal Election Campaign Act as upheld

by this Court in its opinion in Buckley v.

Valeo, 424 U.S. 1, 96 (1976). This strained

analogy - for that is all it is - is far fram

apt, however. This Court has noted the differ-

ence in kind betweer: ballot access and public

financing in canments just before the statements

from Buckley quoted and relied on by the State:

Accordingly, we conclude that public fi-

nancing is generally less restrictive of

access than the ballot-access regulations

dealt with in prior cases, Buckley v.

Valeo, 424 U.S. above at 95,

There is an obviaqus linkage between public

financing and cammunication for the purpose of

persuading voters. Clearly, however, without

ballot access, all of this sought-after public

financing and media cammunication is

less. See also, Elder, op. cit p. 387 ("Suffi-

cient campaign funding for the purchase of vital

mass media advertising before an election will

mean little if a potential candidate cannot

obtain a place on the ballot.")

- 3] -

tion system is actually a "two-step"

process, Appellant's Brief, p. 19. In

reality, the first part of the process

now operates to "screen" (765 F.2d at

1421) out third party statewide candi-

dates and the second part serves as a

"runoff" between the two major parties.

Such a system has the effect of elimi-

nating all but the final traditional

inter party rivalry between the _ two

major parties.

This process is hardly the same

"direct" primary system described in

Storer v. Brown, 415 U.S. 724 (1978),

the case from which the State has drawn

only a partial quotation of this Court's

description of a primary in opening its

"Summary of Argument." Appellant's

Brief, p. 9. Indeed, the next two sen-

tences of the Storer quote raise ques-

- 32 -

tions about Washington's own use of the

"primary" terminology for its September

"first step” process:

The State's general policy

is to have contending forces

within the party employ the

primary campaign and primary

election to finally’ settle

their differences. The gene-

ral ballot is reserved for

major strugg les; it is not a

forum for continuing intra

party feuds.

Storer, 415 U.S. at 735. (emphasis

added)

Thus, despite all of the State's

attempts to describe this process as

involving access to the "ballot" in the

“primary” election, there is a serious

question whether either term is really

appropriate .2_/ Here, in the so-called

27/ Indeed, at least one of the several defini-

tional variants of “ballot” suggests the neces-

Sary connection between the word “ballot” and an

actual election:

(Cont'd)

» 33 «

th

primary,” nominated third party candi-

dates are matched against typically many

more major party candidates who are all

still seeking their party's nomina-

tions ,28/ - hardly a “primary” as des-

cribed above.in Storer. Then, in addi-

tion to this “apples and oranges" quali-

ty, the State imposes a one percent

A slip of paper bearing the names of

the offices to be filled at a par-

ticular election and the names of the

candidates for whan the elector

desires to vote. Black's Law Dictio-

nary p. 182 (4th Ed. 1968).

Since the third party candidates are already

nominated, the only "election" possible here for

them is to be on the general election ballot,

28/ The detriment to the already-nominated

third party candidates can best he expressed by

quoting the Court of Appeals’ decision, 765 F.2d

at 1420 ("The primary ballot for the special

election of the United States Senate in 1983

bore the names of 33 office seekers - 18

candidates fran the Democratic Party, 14

candidates fran the Republican Party, and the

Single nominee of the Socialist Workers Party ,")

The other effects of this disparity in the

numbers and status of the candidates will be

discussed more fully below.

= 34 «

cutoff before any candidate - even one

chosen by his party - can be eligible to

be actually elected on the only real

ballot involved - i.e., the general

election ballot. Here the State has

wholeheartedly endorsed a hybrid "pri-

mary" election system that benefits the

major parties by simultaneously elimina-

ting already-nominated third party can-

didates and eliminating contesting can-

didates within the major parties, as do

traditional "primaries" such as that

described above in Storer.

It must be re-emphasized that the

Washington statutory scheme is unique

and anomalous in these respects, as the

Court of Appeals noted, 765 F.2d at

1421.29/ Indeed, no other state statute

29/ see 765 F.2d at 1421 for the Court of

Appeals'* discussion of Socialist Workers: Party

(Cont'd)

» 35 «

researched by amicus contains similarly

restrictive provisions, even where so-

called “open” primaries are statutorily

mandated .22/ Surely, the concept of the

States serving as "“laboratories" does

not excuse this kind of deviation from

v. Secretary of State, 412 Mich. 571, 317 N.W.2d

1 (1982) and Hudler v. Austin, 419 F. Supp. 1002

(E.D. Mich. 1976), aff'd sub nan. Allen v.

Austin, 430 U.S. 924 (1977) regarding the

Michigan statute as being “similar in terms and

exclusionary impact" and noting that the

Michigan Supreme Court had held that statute

unconstitutional “in light of the exclusion of

minor parties fram the general ballot in two

subsequent elections."

30/ Only two states have “blanket primaries"

and 9 have so-called “open primaries." See

Tashjian v. Republican Party of Connecticut,

prob. jur. ntd. 54 U.S.L.W. 448 (U.S. January

14, 1986) (No. 85-766), Brief of Appellant, pp.

57-58. In one state, Louisiana, the "blanket

primary" may actually serve as an election if

any candidate receives more than 50% of the

total votes cast. If no one candidate receives

more than 50%, the two highest votegetters are

then “run-off" in the November election. See

La. Rev. Stat. Ann. §§ 18:401, 511 (West

1986). Obviously, this Louisiana system bears

more of a relationship to a real "ballot"

because of the chance of actual election and the

- 36 -

constitutional norms, See Appellant's

Brief at p. 13, n.9.

Despite the State's inapt analogies

to Jenness v. Fortson, 403 U.S. 432

(1971) and American Party v. White, 415

U.S. 767 (1974), Appellant's Brief at

ll, there can be no _ serious question

that this Court's precedents guarantee-

ing third party ballot access are impli-

cated by the exclusion of virtually all

such candidates from statewide cam-

paigns., Thus, the appellees and the

amicus Party here can justifiably com-

Plain of the de facto monopoly of the

Washington statewide general election

ballot by the two major parties, what-

irrelevance of any arbitrary percentage cutoff

except the 50% needed to elect any candidate in

the primary or, absent such a primary "winner,"

the two highest vote totals needed to run in the

November election.

= 37 «

ever the original intent of the legisla-

ture .2t/

C. The Court of Appeals Properly Held

That, Viewed in its Totality, the

Washington Statutory Scheme is

Unconstitutionally Burdensome

As noted by the Court of Appeals,

. ' " : Ww 32/

under this Court's totality test ,—

the Washington statute is also unconsti-

tutional because of the early deadline

for third party nominations and result-

ing lack of opportunity for gathering

Support imposed by the statute only on

31/ This Court in Anderson noted the danination

of the state legislatures by the two dominant

parties. Anderson, 460 U.S. at 793, n. 16. The

composition of the Washington State Legislature

in 1977 — the date of passage of the one percent

requirement - was as follows: Senate, 29

Democrats and 20 #£= Republicans; House, 62

Democrats and 36 Republicans. Almanac of

American Politics, p. 889 (1978).

32/ See, e.g., Williams v. Rhodes, 393 U.S. 23,

34 (1968); Anderson v. Celebrezze, 460 U.S. at

789 (1983).

- 38 -

the third parties, As the Court of

Appeals noted:

(A) primary vote system

for measuring required public

support for a minor party

nominee has the inherent ef-

fect of establishing a rela-

tively early deadline, pre-

venting independent-minded

voters who might be attracted

tO a minor party nominee from

basing their choice on sig-

nificant events as they deve-

lop in the course of a canm-

paign.

765 F.2d at 1421,

In effect, then, the first step of the

Washington statutory scheme, or so-

called "primary," pits the already-nomi-

nated third party candidates for state-

wide office against candidates still

seeking the nomination of the two major

parties in September, well in advance of

the general election. At that point,

issues are still being focused and the

candidates' positions on emerging issues

@ 39 «

are still being established.33/ In this

"blanket primary" arrangement, some

voters may indeed favor one of the los-

ing candidates of the major parties

marginally at this stage, but subse-

quently would prefer one of the elimin-

ated third party candidates over either

33/ The effect of the earlier deadline on these

Statewide third party candidates is a state

level version of the burden of early deadlines

for national candidates described by this Court

in Anderson, 460 U.S. at 80. As this Court also

noted in Anderson, 460 U.S. at 785, n.5,

regarding Mandel v. Bradley, 432 U.S. 172

(1977): “On remand, the District Court found

that the early filing deadline imposed

unconstitutional burdens on the plaintiff.

Bradley v. Mandel, 449 F. Supp. 983, 986-989 (D.

Md. 1978)." There, the District Court conmented

inter alia at 986, regarding the effects of an

early deadline: “We find that the early filing

date made it extremely difficult ... to attract

coverage fram the news media, both electronic

and printed .... We find also that the early

filing deadline unduly’ burdened’ Bradley's

ability to raise money to. finance his

campaign.... The burdens placed on the Bradley

campaign with respect to media coverage extended

also to Bradley's efforts to make himself known

by appearing before civic and other graups...."

- 40 -

of the major party candidates on the

general election ballot. Having been

preemptorily eliminated by their early

nomination and resulting lack of sup-

port, the third party candidates never

had a chance to be heard in a general

election over the din of the major party

candidates in the "primary."

In addition to the factors already

noted by the Court of Appeals ,24/ as the

34/ the Court of Appeals described the problem

for third party candidates seeking public

attention in this way: "(T)he focus of the

primary is usually upon contested races between

candidates for the namination of the major

parties, making it more difficult for the

already nominated minor party office seeker to

attract voter attention.” 765 F.2d at 1421.

Similarly, in its decision overturning the

Michigan primary percentage requirement - which,

as noted above, is the closest precedent to this

case — the Michigan Supreme Court emphasized the

particularly burdensome effects of imposing such

restrictions on ballot access at the primary

election level:

This effect is heightened where, as

(Cont'd)

- 4] «

attached affidavit of a Libertarian

Party election campaign official notes,

media access for candidates of third

parties is quite difficult during the

primary campaign and then improves sig-

nificantly during the general election

campaign.2>/ See, e@.g., Anderson, 460

- a ma, - See also, Affidavit of

here, restrictions on access work to

eliminate political and ideological

alternatives at the time major

candidates are selected and before

campaigning has identified and

sharpened the issues effecting the

electorate,

Socialist Workers Party v. Secretary of State,

412 Mich. 571, 317 N.W.2d 1, 6-7 (1982)

(emphasis added)

Clearly, the same reasoning adopted by the

Michigan Supreme Court is applicable to the

Washington statute,

33/ The lack of public interest in the primary

has already been noted by the Court of

Appeals. 765 F.2d at 1421 ("Support may be

drawn only fran the limited graup actually

voting in the primary election.")

- 42 -

Bonita L. Olson, attached hereto as App.

A. Cutting off ballot access before the

general election, as the Washington

Statute does, thus even further reduces

the third parties’ ability to dissemi-

nate their ideas and to educate the

voters on their alternate philoso-

phies 26/

The early deadline for candidates

Clearly unfairly impacts on third party

candidates on two levels - first, the

third party nominating conventions come

even before the major party candidate

7/

filing dates and second, the actual

36 In addition, the public interest, media

access, and ballot access problems of third

party candidates may create fundraising

problems, thus creating a viciqus cycle. See

Elder, op. cit. at p. 387.

3V/ Compare Brief of Appellants, p. 6 ("The

convention for minor party/independent nanina-

tions was rescheduled fram the day of the

primary to the Saturday before the filing

(Cont'd)

43

choice of the third party nominees in

July far precedes the final choice among

the variouS major party nominees in

September, Again, as with the virtually

complete exclusion of third party candi-

dates in statewide contests since 1977,

the impact of the earlier dates falls

period"), with Brief of Appellants at p. 21

("The filing deadlines for minor party and

independent candidates are approximately the

same as for major party candidates; they are

within the same week.") (emphasis added) In

fact, the relevant part of the applicable

statute, Wash, Rev. Code § 29.24.020, reads as

follows: "Any nomination of a candidate for

partisan public office by other than a major

political party shall only be made either: (1)

In a convention held the last Saturday

immediately preceding the first day for filing

declarations of candidacy specified in RCW

29.18.030 ...." Wash. Rev. Code 29.18.030, then

provides, "The name of no candidate shall be

printed upon the official ballot used at a state

primary, unless not <arlier than the last Monday

of July nor later than the next succeeding

Friday, a declaration of candidacy is filed in

the form hereinafter set forth." Clearly,

pursuant to these provisions, the third party

candidates must be nominated a full week before

the last day on which major party candidates are

permitted merely to file for the primary.

e 64 «

only on the third party candidates.

This unfair burden is precisely what

this Court's ballot access precedents

forbid. Anderson, 460 U.S. at 793.

In addition, the Washington statute

does not fare well in a comparison with

the deadlines for third party candidates

in other states ,2°/ Only seven have

earlier deadlines for third party or

independent presidential candidates than

Washington,22/

38/ ronically, it is just that early filing

deadline for independents in Illinois that is

likely to be an "obstacle" for Adlai Stevenson,

III, the Democratic Party candidate for Governor

in Illinois, who is now seeking to disassociate

himself fram his party's nominated candidates

for lieutenant governor and secretary of state,

as well as two downstate congressional nomina-

tions. According to news reports, Mr. Stevenson

is planning to seek a legislative solution to

the deadline or, failing that, to challenge it

in court, See Malcolm, op. cit.

39/ The states' statutory provisions and

(Cont'd)

- 45 -

The real issue with the early dead-

line, however, is that it, together with

the “blanket primary" one percent re-

«40/

quirement, operate in tandem to

burden third party candidates unfairly

deadlines for the only seven states with earlier

deadlines than Washington are as follows:

State Statute 1988 Deadline

KS Kan. Stat. Ann. § 25-305 June 10

(1985)

ME Me. Rev. Stat. Ann. June 14

tit. 21A § 354.8-A (1985)

NC N.C. Gen. Stat. June 24

§ 162-122 (1982)

IN Ind. Code Ann. § 3-1 - July 1

ll - 1 (West 1985)

FL Fl. Stat. July 15

§ 103.021(3) (West 1985)

OK Ok. Stat. Ann, tit. 26 July 15

§ 10-101.1 (West 1985)

TX Tex. Code Ann, July 21

§ 181.005(a), § 181.061(c)

(Vernon 1986)

40/ See Storer v. Brown, 415 U.S. 724, 737

(1974).

ow

and to preser

- 46 -

ve the "monopoly" of the

CwO major parties in the State's elec-

tions and offi

IV. CONCLUSIO

ces,

N

For the

amicus Party r

to affirm the

Appeals,

reasons stated herein, the

espectfully urges this Court

decision of the Court of

Respectfully submitted,

Counsel gratef

JAMES J, FEATHERSTONE*

Santarelli, Smith, Kraut ¢

Carroccio

2033 M Street, N.W.

Washington, D.c, 20036

(202) 466-6800

RICHARD FE, GARDINER

7404 Estaban Place

Springfield, Virginia 22151

*Counsel of Record

ully acknowledge the assist-

ance of J. Benedict Centifanti, Law Clerk,

in the prepara

tion of this brief,

Appendix

APPENDIX "A"

(original filed with the Court)

No. 85-656

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

SECRETARY OF STATE OF THE STATE

OF WASHINGTON, RALPH MUNRO,

APPELLANT,

Ve

SOCIALTST WORKERS PARTY, et al.,

APPELLEES,

AFFIDAVIT OF BONITA L. OLSON

I, the undersigned, am making this

affidavit as part of the brief

amicus curiae of the Libertarian

Party of Washington in support of

the Appellees in this case and for

the position that Section

29.18.110 of the Revised Code of

Washington, as applied to statwide

third party candidates such as

those of Appellees or of the

Libertarian Party, is unconstitu-

tional,

I have personal knowledge of the

facts set forth herein, I was

campaign manager for Richard kK,

Kenney, Libertarian Party

candidate for United States

Senator for the State of

Washington in 1980 until after the

September primary, and I was

campaign manager for Maurice

Willey, Libertarian Party

candidate for the Washington State

Legislature, from the primary

through the general election in

1980,

At the time of the 1980 U.S,

Senate campaign, Richard K. Kenney

was already a well-informed and

experienced campaigner. He had

already been the Libertarian Party

candidate for the .S. Senate in

1976 when he had polled 19,373

votes, or a total of 1.30% of the

total vote for that office,

Ry the 1980 campaign, the

Libertarian Party of Washington

was much stronger and better

Organized than it had been in

1976, as indicated by its improved

election results during the

Presidential campaign that year in

which the Libertarian Party

Presidential candidate (Cont'd)

- 2a-

polled 29,213 votes as compared to

only 5,042 votes in the 1976

election,

The 1980 Senatorial campaign for

Richard K. Kenney was well

organized on a statewide basis

including, inter alia, the

distribution of over 5,000

leaflets in July, August and

September, 1980 by three teams of

Six people each across the state,

A copy of that pamphlet is

attached hereto and incorporated

as Exhibit A.

Throughout the primary campaign in

July, August, and September, press

releases about the Richard kK,

Kenney campaign were sent out to

every major television and radio

Station in the state and to most

of the daily newspapers across the

state,

During August and September, 1980,

Richard K. Kenney toured the state

speaking to local groups, giving

press conferences and_ granting

interviews to the media whenever

they attended his briefings.

Prior to the primary in September,

1980 I personally found it to be

very difficult to attract adequate

press coverage for the Kenney

campaign, despite his excellent

qualities as a candidate and

public speaker, because of a

general lack of media and public

interest in the primary campaign.

- 3a -

10,

Ll.

Although he was an experienced and

charismatic candidate who

diligently campaigned with well-

organized Support, Richard K.

Kenney was not able to obtain the

newly required 1% of the total

vote case in the primary for the

office of U.S. Senator in 1980 as

he had in 1976, and therefore his

name did not appear on the general

election hallot to the detriment

of the support for the Libertarian

Party's other candidates.

After the primary, when I served

as campaign manager for Maurice

Willey in the general election,

media representatives actively

sought press coverage of the

Libertarian Party candidate anda

the public interest in the

election increased significantly.

Because of the 1% requirement and

the time and effort expended in

the 1980 campaign for Richard kK.

Kenney, the Libertarian

Party of Washington has_ never

again tried to gualify another

statewide candidate for U.S.

Senator or Governor of Washington.

BONITA L. OLSON

Signed and sworn to before me on

April 7, 1986 by Bonita L. Olson.

Catherine G. Brumbaugh

Notary Public

State of Washington

My Commission Expires: 12/30/89

Exhibit A.

SENATE

oining Ed Ciark in presenting the Libertarian alternative to

Washington voters is Rich Kenney, candidate for U.S. Senate.

A message from Rich Kenney to the people of Washington:

‘Libertarian positions are based on the belief that all individuais have the

right to live their lives in any way that’s peaceful. A similar view inspired

the founding of our Country, a view best expressed by Jefferson's

Deciaration of independence.

“But today we suffocate under intrusive, oppressive laws and regulations.

Both at home and abroad, the American government has become a danger

to, rather than a protector of, liberty and hfe. With other Libertarians, |

propose a fundamental change in government, away from paternalistic

interference and toward respect for and defense of individual rights.

“Libertarian foreign policy emphasizes the need for providing adequate

defenses against attack and for limiting the activity of our military to strictty

defensive measures. This means we would not go to war simply Decause

our standard of living was threatened by a politically caused rise in the

price of middie east oil.

“Libertarian domestic policy emphasizes both civil liberties and economic

freedoms, which means an end to harassment of those whose onty ‘crime’

is being different and an end to the innumerable restrictions upon mutual

exchange and to privileges some firms are awarded over others.

‘A Libertarian elected to the Senate means a consistent champion of peace

and freedom."’

WASHINGTON’S

_ ALTERNATIVE IN 1980

y,