Appendix — Hopfmann v. Connolly

———22 ||

ou Dré 4

No. | DEC 28 129°

IN THE SUPREME COURT OF THE UNITED°STATES

October Term, 1985 |__|

ALWIN E. HOPFMANN, GREGORY HESSION,

CLARENCE PERKINS, CLARENCE PAULIN, and

BETH SULLIVAN,

Appellants,

Ve

MICHAEL JOSEPH CONNOLLY, FRANCIS X.

BELLOTTI, CHESTER G. ATKINS, and the

DEMOCRATIC STATE COMMITTEE OF

MASSACHUSETTS,

Appellees.

ON APPEAL FROM THE UNITED STATES COURT OF

APPEALS FOR THE FIRST CIRCUIT

Jurisdictional Statement

Appendix

Laurence A. Elgin Lawrence J. Ball

2762 Woodley Place, N.W. Boston, Mass.

Washington, D.C. 20008

(202) 628-1114 Fred Goldstein

Plantation, Fla.

James F. Schoener, Washington, D.C.

Q

a

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED.

eT OA oP pak iN ote

ee tae

y

pie:

APPENDIX: TABLE OF CONTENTS

OPINION APPEALED FROM,

July she eee | oe AA-1

JUDGMENT of July 31, 1985...App. BB-1

ORDER denying rehearing,

September 23, 1985..... -App. CC-1

OPINION of the

district court,

April 9, 1984.App......-App. OB 35

OPINION OF THE JUSTICES

TO THE GOVERNOR

April 23, 19SZ.ccccseccvees -App. F-1

CONSTITUTIONAL AND

STATUTORY PROVISIONS.......-CONSTAT 1

FROM THE AGREED UPON

LEGISLATIVE HISTORY OF

THE 15 PERCENT RULE FROM

THE COURT BELOW:

ARTICLE: UNREFORMING

THE PARTIES, Dobel and

Stockton (excerpts)........ ee eae L-1

REPORT: "DEMOCRATIC

COMMISSION DRAFTS PARTY

CHARTER" BY.JEROME MILEUR.........-M-1

EXCERPTS: AGREED UPON

STATEMENT OF Dt ceneeeadevessswetes

NOTICE: IMPORTANT NOTICE,

from Charter Convention.........--N-10

app tc-l

UNITED STATES COURT OF APPEALS

For the First Circuit

No. 84-1317

ALWIN E. HOPFMANN, ET AL.,

Plaintiffs, appellants,

Vv.

MICHAEL JOSEPH CONNOLLY, ET AL.,

Defendants, Appellees.

ON REMAND FROM THE

UNITED STATES SUPREME COURT

Before

Campbell, Chief Judge,

Cowen,* Senior Circuit Judge,

and Bownes, Circuit Judge,

Lawrence J, Ball and Laurence E, Elgin on

brief for appellants.

Francis X, Bbellotti, Attorney General and

Alexander ra r., Assistant Attorney

General, Chief, Elections Division, on

brief for appellees, Michael Joseph

Connolly, Secretary of State and Francis

X. Bellotti, Attorney General.

James Roosevelt, Jr,, and James H, Wexler,

App. AA-i

Keith C, Long, and Herrick & Smith on brief

for appellees, Chester G. Atkins and The

Democratic State Committee of Massachus-

etts.

July 31, 1985

* Of the Federal Circuit, sitting by

designation,

COWEN, Senior Circuit Judge,

In Hopfmann v. Connolly, U.S. 9

105 S.Ct. 2106 (1985), the United States

Supreme Court vacated in part and remanded

our decision, which is reported in 746 F.2d

97 (lst Cir. 1984). In that decision, we

had held that the enforcement by the

Commonwealth of Massachusetts of its

Democratic Parfty's so-called "15 percent

rule," which limits ballot access in the

state primary to candidates who receive 15

percent or more of the vote in the party's

App. AA-2

convention, did not violate the United

States Constitution. In rejecting one of

appellants' contentions, that the rule

violated the First and fourteenth Amend-

ments to the Constitution, we relied on the

Supreme Court's summary dismissal of an

earlier appeal from a decision of the

Supreme Judicial Court of Massachusetts,

Langone v. Connolly, 460 U.S. 1057 (1983).

The Supreme Court vacated our decision to

the extent that we relied on its summary

di8smissal in Langone, and held that this

dismissal had no precedential effect.

Therefore, the sole question before us

on remand is whether the enforcement by

Massachusetts of its Democratic Party's 15

percent rule, which denied appellant

Hopfmann access to the ballot in the 1982

Democratic primary for U.S. Senator,

violated the First or Fourteenth Amend-

ments, Appellants content that the state's

encorcement of this rule violates their

App. AA-3

rights to freedom of association and equal

protection guaranteed by these amendments.

As we understand their brief, they do not

maintain as the plaintiffs in the Langone

case apparently argued before the Massachu-

setts courts, that Massachusetts statutes

per se bar the state from enforcing the 15

percent rule.1

Moreover, even if such a contention were

before us, the Supreme Judicial Court of

Massachusetts has construed the state's

statutory ballot access requirements in

Langone to encompass, rather than to

exclude, the Democratic Party's 15 percent

rule.

For the purpose of evaluating the

1 Appellants argue here that Massa-

chusetts has not statutorily delegated its

constitutional authority to conduct

Senatorial elections to any political

party. This argument was apparently made

Only as the basis for their contention,

disposed of in our earlier decision, that

the 15 percent rule violates the "time,

place and manner” provisions of Article I,

Section 4 of the Constitution. See 746

F.2d at 101-102.

App. AA-4

plaintiffs' claims that the 15% rule

violated rights guaranteed to them by

the Federal and State Constitutions,

we treat the rule as though it were

expressly contained in G.L. c. 53.

Langone v. Secretary of the Commonwealth,

388 Mass. 185, 195; 446 N.E.2d 43. 48

(1983). We are bound to follow this

interpretation of state law by the state's

highest court, absent extreme circumstance-

es not present in this case. Mullan

v. Wilbur, 421 U.S. 684, 691 (1975).

A challenge to the validity of the 15

percent rule on First and fourteenth

Amendment grounds was also exhaustively

refuted by the Supreme Judicial Court of

Massachusetts in Langone, 446 N.E. 2d at

48-51. Like the district court below, we

agree with the analysis of this issue by

the Massachusetts court, and do not

consider it necessary to repeat that

court's discussion at length. Both the

rationale and the result reached in Langone

are amply supported by the decisions of the

App. AA-5

United States Supreme Court, which are

cited therein. It suffices to say that the

15 percent rule's infringement of appell-

ants' rights to associate and express

political ideas, as well as their right to

equal protection of the laws, is not

enbstantial. For example, the rule does

not discriminate against any class of

candidates or voters, and does not dis-

qualify any candidates from appearing on

the general election ballot. Cf£, Bullock

v. Carter, 405 U.S. 134, 142-44 (1972);

Jenness v.Fortson, 403 U.S. 431, 438-42

(1971). Moreover, the 15 percent rule

promotes the legitimate and important state

interest of "prevent[ing] the clogging of

its election machinery, avoid[ing] voter

confusion, and assur[ing] that the winner

Si the choice of a majority, or at least a

large plurality, of those voting, * * * ,"

torer v. Brown, 415 U.S. 724 (1974) ;Bull-

ock v. Carter, 405 U.S. at 145.

App. AA-6

Pursuant to the standards which have

been utilized by the Supreme Court in

ballot access cases, it becomes apparent

that the 15 percent rule does not “unfairly

Or unnecessarily burden[] the availability

of political opportunity." Anderson

v. Celebrezze, 460 U.S. 780, 793 (1983).

therefore, we hold that appellants’

contention that the 15 percent rul

violates the First and Fourteenth Amendm-

ents is without merit.

The remand does not require and we find

no reason for reviewing or disturbing the

remainder of our previous decision.

Accordingly, the judgment of the district

court dismissing appellants' claims is

again affirmed.

AFFIRMED.

App. AA-7

ORDER BELOW RE-AFFIRMING DISMISSAL OF

DISTRICT COURT ON REMAND

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 84-1317

ALWIN E. HOPFMANN, ET AL.,

Plaintiffs, Appellants,

Vv.

MICHAEL JOSEPH CONNOLLY, ET AL.,

Defendants, Appellees.

JUDGMENT

Entered: July 31, 1985

This cause was remanded from the

Supreme Court of the United States and was

submitted on briefs.

Upon consideration whereof, It is now

here ordered, adjudged and decreed as

follows: The judgment of the District

Court dismissing appellants claims is

again affirmed.

7 OEE ooo

By the Court:

Francis P. Scigliano

Clerk.

By: Richard W. Gordon

Chief Deputy

Clerk.

[cc: Mssrs. Ball, Bellotti and Roosevelt]

App. BB-2

act cll

ORDER BELOW DENYING PETITION FOR REHEARING

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 84-1317

ALWIN E. HOPFMANN, ET AL.,

Plaintiffs, Appellants,

Vv.

MICHAEL JOSEPH CONNOLLY, ET AL.,

Defendants, Appellees.

BEFORE

CAMPBELL, Chief Judge,

COWEN,*Senior Circuit Judge,

COFFIN, BOWNES, BREYER AND TORRUELA,

Circuit Judges.

ORDER OF COURT

Entered: September 23, 1985

The panel of judges that rendered the

decision in this case having voted to deny

the petition for rehearing and the

suggestion for the holding of a rehearing

en banc having been carefully considered

by the judges of the Court in regular

active service and a majority of said

judges not having voted to order that the

appeal be heard or reheard by the Court en

banc,

It is ordered that the suggestion for

rehearing en banc be hereby denied.

By the Court:

Francis P. Scigliano

Clerk.

*Of the Federal Circuit, sitting by

designation.

[cc: Mssrs. Ball, Bellotti and Roosevelt]

/ eo «! 6 eee |

er |

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

ALWIN E. HOPFMANN, ET AL,

Plaintiffs,

v. CIVIL ACTION NO. 82-1530-MC

CIVIL ACTION NO. 84-393-MC

MICHAEL JOSEPH CONNOLLY, ET ALS,

Defendants.

MEMORANDUM AND ORDERS DISMISSING

COMPLAINTS

OB 35

McNAUGHT, D. J.

In his complaint in 1982 Mr.

Hopfmann,who sought to be a candidate in

the Democratic primary for United States

Senator, but was excluded from the ballot

for failure to obtain the 15 percent of

the votes cast at the Democratic Party

Convention, attacked the validity of the

the "15% Rule" for the first time. (The

Rule requires that if a person is to run

in a party primary, he or she must have

received 15% of the votes on any ballot at

the Convention endorsing the candidates. )

His was not the only challenge to the

OB 36

Rule. Frederick C. Langone brought an

action in the courts of the Commonwealth

of Massachusetts. Eventually the Supreme

Judicial Court held that the 15 Percent

Rule was not excluded by Chapter 53 of the

Masachusetts General Laws; that the

statute accommodated the Rule and that the

Rule was not constitutionally invalid.

Appeals were taken to the Supreme Court of

the United States. Those were dismissed

for want of jurisdiciton. Certiorari

petitions were denied.

At the hearing on the issuance of a

preliminary injunction on the 1984

complaint (in February of this year), the

parties agreed that the matters submitted

to the three-judge court on the 1982

OB 37

complaint are no longer pending. They

have been resolved. Defendants contend

that no substantive issues remain for

resolution by me as the single judge

assigned to the action. Plaintiffs

disagree. In early 1983, I asked that a

statement of issues (for the single judge)

be submitted by plaintiffs . It was filed

February 9, 1984,

Motions to dismiss both actions

(treated now as motions for summary

judgemetn) were taken under advisement,

once the parties had an opportunity to

submit written arguments and briefs.

After deliberation I conclude and rule

that judgment for defendants must be

entered in both cases.

OB 38

With respect ot the civil Action No.

82-1530=MC, I am in agreement with the

decision of the Supreme Judicial Court

upholding the Rule's validity, and for the

reasons expressed therein. Extensive

repetition of those reasons is

>)

ih

unnecessary. See Langone v. Secretary

the Commonwealth, 446 N.E.2d 43 (Mass.

1982f). The analysis of the right to

associate with a political party,

protected by the First and Fourth

Amendment ot the United States

Constitution, the interest of a party in

ensuring that its members will have an

effective role in deciding who will appear

as a party's candidate, the fundamental

right of association in a political party

OB 39

and the integrity of the election process

are all discussed as factors which do not

require preclusion of the Rule as

obstacles, but provide foundations for

it. The Supreme Judicial Court cited

Democratic Party of United States v.

Wisconsin, 450 U.S. 1007 (1981) as

authority for the proposition that the

Rule requiring a modicum of support from

members with substantial affiliation with

the party is one mode of assuring freedom

of association-~-association with the

ability to limit control of its decisons

to those sharing its interests. It was

said, (and properly), that although the

Rule has some impact on voters' rights and

those of candidates, access to the ballot

OB 40

was not denied unfairly.

Plaintiffs' claims were rejected by

the Supreme Court (April 4, 1983).

Appeals were dismissed and certiorari

denied. No substantive issue remains to

be determined. Plaintiffs’ Article I,

Sec. 4 claims have been rejected twice by

a Single Justice of the Supreme Court.

There is no substantial federal question

to be determined and the action is

dismissed on its merits.

The complaint in civil Action No. 84-

393 was filed February 10, 1984. Ina

statement of reasons for denial of a

preliminary injunction filed February 21

of this year, I wrote:

As stated -hereinbefore, the plaintiff

OB 41

in the second action does not concede

the validity of the 15 Percent Rule.

Indeed, it is specificallky averred

in Paragraph XXXV that the "15

Percent Rule is an unconstitutional

act", and elections thereby affected

are "void" and a new special election

should be held. Mr. Hopfmann, as a

would-be candidate for the office of

United States Senator from the

Commonwealth of Massachusetts and as

a voter, asserts that if the Rule is

not invalid, it should be applied to

all cunsadenes for the office of

President of the United States and

for the office of United States

Senator from Massachusetts; that it

OB 42

should be applied not only to

Democrats but to Republicans as well;

that all persons who are candidates

or “who have announced that they are

thinking" of becoming candidates for

the office of President of the United

States or the United States Senate

should be enjoined "until they comply

with the 15 Percent Rule of the

Democratic Party" from participating

in any primary. He would have this

Court enjoin the Secretary of the

Commonwealth and the Director of

Elections to remove all names from

the presidential primary ballot in

March, and to order the Republican

State Committee also to enforce the

OB 43

"15 Percent Rule”.

If Mr. Hopfmann is denied

preliminary relief and the 15 Percent

Rule remains in effect, the rule will

be applied to him and to all other

potential candidates at the

Democratic party's primary

convention, scheduled to be held in

June in the Commonwealth of

Massachusetts. Should he fail to

meet the requirements of the 15

Percent Rule, the Secretary of the

Commonwealth will not allow his name

to appear upon the printed primary

ballot. Mr. Hopfmann wili have

suffered harm at that time. On the

other hand, if an injunction as

OB 44

requested in this action is granted,

the campaigns of all candidates for

the presidency will be disrupted, as

well as\the campaigns of all

candidates for the United States

Senate from Massachusetts (Democrat

and Republican alike). The public

interest in orderly timely elections

will be disrupted as well. A balance

of these factors militates against

the issuance of an injunction.

The reasons that I gave at that time for

the conclusion that the plaintiffs had not

shown a likelihood of success on the

merits afer further study, provide the

basis for the conclusion that the judgment

must enter in favor of the defendants.

OB 45

His contention that the 15 Percent

Rule is invalid has been testedinthe

past, and found wanting. It has been

the subject of adverse opinion by the

Supreme Judicial Court of

Massachusetts, and the Supreme court

of the United States thereafter

dismissed appeals and denied

certiorari. On two other

occasions, single justices of the

Supreme Court of the United States

have failed to find merit in his

claims. Secondly, he asks to have a

rule of the*State Democratic

Committee applied to persons seeking

the Republican nomination. There

will be no Republican nominating

OB 46

Bits

convention in Massachusetts in 1984,

Neither the State nor this Court can

enforce a Democratic 15 Percent Rule

upon the Republican party. Thirdly,

Mr. Hopfmann seeks to have the 15

Percent Rule of the Democratic Party

applied to candidates for the

presidency. The presidency is an

office of nation-wide scope. It is

not a state-wide office as Mr.

Hopfmann clailms. Finally, as we

were reminded in argument, the

purpose of the presidential

primaries in the Commonwealth of

Massachusetts is not to provide party

nominees, but establishes the

proportionality of the Massachusetts

OB 47

delegations to the nominating

conventions.

Plaintiffs, other than Mr. Hopfmann,

have no standing to bring this action.

He, at least, was a potential candidate

for office. The others cannot claim that

the Rule is applied against them at all.

They have no personal involvement, and

appear to be seeking an opinionfrom this

Court of an advisory nature only, for the

possible benefit of others. United Public

Workers of America v. Mitchell, 330 U.S.

75 (1947) requires the conclusion of lack

of standing on their part. Indeed, there

is even qustion pertaining to the standing

of Mr. Hopfmann. Even assuming standing,

the complant must be and is hereby

OB 48

dismissed.

[signature]

JOHN J. McNAUGHT

UNITED STATES DISTRICT

JUDGE

April 9, 1984

OB 49

a

=i! om es Per

App. F-1l

OPINION OF THE JUSTICES TO THE

GOVERNOR, Supreme Judicial Court of

Massachusetts. Aprii 23, 1982. 385

Mass. 1201.

A question was propounded by the

Governor of the Commonwealth of Massa-

chusetts to the Justices of the Supreme

Judicial Court with respect to the nomina-

tion of party candidates for placement on

the state primary ballot. The Justices of

the Supreme Judicial Court, gave answer

that proposed mandatory statute providing

that "Notwithstanding the charter, rule or

by-law of a political party, any candidate,

who is enrolled in such political party,

submitting ne pe papers subject to

the provisions of this chapter shall be a

candidate for nomination of the state

primary" would abridge the constitutional

rights of the party and its members to

App. F-2

associate while allowing candidates to be

placed on the state primary ballot in con-

travention of the party's charter.

Question answered.

On April 23, 1982, the Justices sub-

mitted the following answers to questions

propounded to them by the Governor.

To His Excellency, the Governor of

the Commonweaitn of Massachusetts:

The Justices of the Supreme Judicial

Court hing tet respond to the questions

set forth in the Governor's request dated

April 5, 1982, and transmitted to the Jus-

tices on April 6, 1982.

General Laws c. 53, 8 44, as amended

through St. 1981, c. 278, 8 1, provides in

part that "(t)he nomination of candidates

for nomination at State primaries shall

be by nominavion papers." There is pend-

ing before the Governor for his approval

App. F-=3

House Bill No. 5852, which would amend

c.53, 8 44, by inserting after the first

sentence the following sentence: "Not-

withstanding the charter, rule or by-law

of a political party, any candidate, who

is enrolled in such political party, sub-

mitting nomination papers subject to the

provisions of this chapter shall be a

candidate for nomination at the state pri-

mary." Article Six, Section III, of the

charter of the Democratic party of the

Commonwealth of Massachusetts, provides

"There shall be a State Convention in even-

numbered years for the purpose of endors-

ing candidates for statewide offices in

those years in which such office is to be

filled. Endorsements for statewide office

of enrolled Democrats nominated at the

Convention shail be by majority vote of

the delegates present and voting, with the

proviso that any nominee who receives at

least 15 percent of the Convention vote on

any ballot for a particular office may

challenge the Convention endorsement in

a State Primary Election."

Stating his uncertainty "as to

the necessity or constitutionality of

H.5852 if enacted into law," the Governor

requests, pursuant to the authority con-

tained in Pt. II, c.3, art. 2, of the

Massachusetts Constitution, as amended by

art. 85 of the Articles of Amendment, the

opinion of this court on the following

questions of law:

"1. Does the fifteen

percent rule in the Demo-

cratic Charter supersede

the current provisions of

General Law, Chapter 53,

Section 44, or can a can-

didate be placed on the

Democratic State Primary

Ballot by nomination

papers without having re-

ceived fifteen percent of |

App. F-5

the vote at the party

convention?

"2, Would enactment

of H.5852 allow a can-

didate to be placed on

the Democratic State

Primary Ballot by nom-

ination papers without

having received fifteen

percent of the vote at

the party convention?"

The constitutional provision which

empowers us to answer questions propounded

by the Governor, the Council, and the

Legislature, restricts our authority to

"important questions of law" and to "solemn

occasions." Part II, c. 1, 81, art. 2 of

the Massachusetts Constitution. To pre-

serve the principle of separation of powers,

fundamental in our system of government, we

are bound strictly to observe these con-

stitutional limitations. Answer of the

Justices, 362 Mass. 914, 916-917, 291 N.E.

2d 598 (1973). As the Justices have ad-

App. F-6

vised, "By a solemn occasion the Consti-

tution means some serious and unusual

exigency. It has been held to be such

an exigency when the Governor or either

branch of the Legislature having some ac-

tion in view has serious doubt as to their

power and authority to take such action,

under the Constitution, or under existing

statutes." Answer of the Justices, 373

Mass. 867, 871, 366 N.E. 2d 730 (1977),

quoting from Answer of the Justices, 148

Mass. 623,625-626, 21 N.E. 439 (1889).

(1) Because question number 1

inquires only about the legal effect of

the current statute in light of the Demo-

cratic party charter, and not about the

Governor's authority to take action,

there is no solemn occasion authorizing

us to answer. Opinion cf the Justices,

Mass. . » Mass.Adv. Sh.

App. F-7

(1981) 1361, 1381-1382, 424 N.E. 2d 1092.

It may well be that the Justices' answer

to question number 1 would help the Gov-

ernor determine the "necessity" of House

No. 5852 in view of the present statute,

a concern expressed in the request. How-

ever, whether the bill is necessary raises

the question whether it is wise or expedi-

ent for the Governor to approve the bill.

The Justices are not empowered to answer

questions bearing on the wisdom or expedi-

ency of proposed legislation. Answer of

the Justices, 319 Mass. 731, 734, 66 N.E.

2d 358 (1946). Opinion of the Justices,

314 Mass 767, 771-772, 49 N.E. 2d 252

(1943). Not having the authority to

answer question number 1, we respectfully

request that we be excused from answering

it.

App. F-8

In the context of the Governor's

expressed uncertainty as to the constitu-

tionality of House No. 5852, we interpret

question number 2 to inquire whether, if

House No. 5852 were approved, G.L. c. 53,

§ 44, as thereby amended, would abridge

the constitutional rights of the Democrat-

ic party and its members to associate by

allowing candidates to be placed on the

Democratic State primary ballot in contra-

vention of the party's charter. The Gov-

ernor has a present duty to act on House

No. 5852. Part II, c. 181, art. 2, of

the Massachusetts Constitution. This

duty, and the Governor's expressed doubt

about whether House No. 5852 would be

constitutional if he approved it, present

a solemn occasion requiring our answer to

the second question. See Opinion of the

Justices, 314 Mass. 767, 772, 49 N.E. 2a

App. F-9

252 (1943).

"The (Democratic Party of the

Commonwealth) and its adherents enjoy a

constitutionally protected right of poli-

tical association. ‘There can no longer

be any doubt that freedom to associate

with others for the common advancement of

political beliefs and ideas is a form of

"orderly group activity" protected by

the First and Fourteenth Amendments

The right to associate with the political

party of one's choice is an integral part

of this basic constitutional freedom.'

Kusper v. Pontikes, 414 U.S. 51, 56-57,

94 S.Ct. 303, 307, 38 L.Ed.2d 260 (1973).

'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.

App. F-10

Rhodes, 393 U.S. 23, 30-31, 89 S.Ct. 5,

10-11, 21 L.Ed. 2d 24 (1968). Moreover,

'(a)ny interference with the freedom of a

party is simultaneously an interference

with the freedom of its adherents.' Sweezy

v. New Hampshire, 354 U.S. 234, 250, 77 S.

Ct. 1203, 1211, 1 L.Ed.2d 1311 (1957); see

NAACP v. Button, 371 U.S. 415, 431, 83S.

Ct. 328, 337, 9 L.Ed.2d 405 (1963)."

Cousins v.Wigoda, 419 U.S. 477, 487-488,

95 S.Ct. 541, 547, 42 L.Ed.2d 595 (1975).

"Preedom of association would prove ar

empty guarantee if associations could not

limit control over their decisions to

those who share the interests and persua-

sions that underlie the association's

being." Democratic Party of U.S. v.

Wisconsin, 450 U.S. 107, 122n22, 161 S.Ct.

1010, 1019, 67 L.Ed.2a 82 (1981), quoting

L. Tribe, American Constitutional Law 791

App. F-11

(1978). A determination of who will appear

on a general election ballot as the candi-

date endorsed by an identified political

party is a critical decision for that party.

The party, therefore, has a substantial in-

terest, implicit in its freedom of associa-

tion, to ensure that party members have an

effective role in that decision. Democrat-

ic Party of U.S. v. Wisconsin, supra.

Within the Commonwealth, the winner

by a plurality of a party primary becomes

that party's candidate for statewide of-

CA)

fice in the general election. G.L. c 53,

8 2. Voting in party primaries is limited

to enrolled party members and unenrolled

voters who enroll at the polls just before

receiving ballots. G.L. ec. 53, 8 37.

Apart from Article Six, Section III, of

the State Democratic party charter, in

order to be placed on a party's primary

App. F-12

ballot, a candidate for statewide office

must be an enrolled member of that party,

G.L. c. 53, 8 48, and submit nominating

papers signed by at least 10,000 register-

ed voters, c. 53, 8 44, who may be enroll-

ed in that party or unenrolled. G.L. c.

53, 8 46. Therefore, apart from Article

Six, section III, of the State Democratic

party charter, a candidate for statewide

election could be placed on the Democrat-

ic party ballot and win the primary, thus

becoming entitled to be placed on the

general election ballot as the Democratic

party candidate, with little or no support

from the regular party membership.

1/ As of February, 1980, 39.9% of all

registered voters in the Commonwealth

were unenrolled. Bachrach v. Secre-

tary of the Commonwealth, Mass.

", Mass.Adv.Sh. (1581) at 97

TiS NvE.d 832.

App. F-13

The State Democratic party charter,

Article Six, Section III, proviso that any

nominee who receives at least 15% of the

vote at the State convention may challenge

the convention endorsement, by. negative

implication adds to the statutory require-

ment of nomination papers for placement

on the primary ballot the further require-

ment that a candidate must receive at

least fifteen percent of the convention

vote. This has the double effect of limit-

ing the number of candidates on the pri-

mary ballot, thereby eliminating the con-

fusion that may result from too many can-

didates, and of limiting the candidates

to those with significant party support,

thereby giving’ the party members an ef-

fective role in choosing the party's

candidate in the general election. The

State has been held to have a compelling

App. F=14

interest in limiting the number of candi-

dates in order to prevent voter confusion.

American Party of Texas v. White, 415 U.S.

767, 780-781, 94 S.Ct. 1296, 1305-06, 39

L.Ed.2d 744 (1974). Storer v. Brown, 415

U.S. 724, 732, 94 3.Ch.. EZ7TS, Teas, 3 bee.

2d 714 (1974). A political party has a

parallel interest.

If House No. 5852 were approved,

G.L. c. 53, 8 44, as thereby amended,

would appear to override the charter re-

quirement of 15% of the convention vote

for placement on the primary ballot and,

together with c. 53, 8 46, would eliminate

the Democratic party's control of who its

candidate in the general election would

be. This would substantially infringe

the right of freedom of association of

the Democratic party and its members,

and therefore, to pass constitutional

— PF,

App. F-15

muster, it must serve a compelling State

interest, Sears v. Secretary of the Com-

monwealth, 369 Mass. 392, 397, 341 N.E.

2d 264 (1975), and do so with as little

infringement on constitutional rights as

possible. See Riddell v. National Demo-

cratic Party, 508 F.2d 770, 776-778 (5th

Cir. 1975). We must apply "strict scrut-

iny" to its justification and operation.

Bachrach v. Secretary of the Commonwealth,

Mass. ’ , Mass.Adv.Sh. (1981)

93, 101, 415 N.E.2a 832.

The Commonwealth unquestionably

has a compelling interest in the overall

regularity of the election process, in-

cluding limitation of the number of can-

didates on the ballot so as to avoid

voter confusion and ensuring that the can-

didates whose names appear on the ballot

have significant community support.

App. F-16

American Party of Texas v. White, 415 U.S.

767, 782, 94 S.ct. 1296, 1306, 39 L.Ed.2a

744 (1974). This applies to the conduct

of primary elections, Kusper v. Pontikes,

414 U.S. 51, 94 S.Ct. 303, 38 L.Ed.2d 260

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

752, 93 S.Ct. 1295, 3% L.BA4.2d & (1973),

which are an important part of the pro-

cedure by which the ultimate office holder

is chosen. Sears v. Secretary of the

Commonwealth, supra, 369 Mass. at 398, 341

N.E.2d 264. These interests are served

by the requirement that each candidate

for statewide office obtain the signatures

of at least 10,000 registered voters on

nomination papers, G.L. ce. 53, 8 44, but

they are not served by the elimination

of a 15% convention vote requirement for

placement on the primary ballot. Elimina-

A 8 mom «am@ Q%.2. Tree m Sone &@ a. aq aaet«a ath aoe ae

App. F-17

requirement could only increase the

number of candidates on the primary

ballot, with a resulting increased po-

tential for voter confusion.

We assume that House No. 5852 was

designed to promote the integrity of the

election process. Nevertheless, the

Commonwealth's compelling interest in the

integrity of the election process does

not constitutionally justify elimination

of party control over who the party's can-

didate in the general election will be.

This view finds support in Democratic

Party of U.S. v. Wisconsin, supra. In

that case, the United States Supreme Court

struck down a State statute that compelled

the party to seat delegates at its nation-

al convention who were bound by the stat-

ute to vote on the first ballot with the

results of a primary election in which any

App. F-18

registered voter could participate regard-

less of party affiliation. This was con-

trary to the national party rules. Wis-

consin impermissibly attempted to override

the national party's attempt to limit

"those who could participate in the pro-

cesses leading to the selection of dele-

gates to their National Convention." Id.

450 U.S. at 122, 101 S.Ct. at 1019. Gene-

ral Laws c. 53, 8 44, as it would be amend-

ed by House No. 5852, would attempt to

Override the State Democratic party's ef-

fort to ensure that regular party members

have a substantial voice in the selection

of its candidates for statewide office,

and that, at least in conjunction with

B88 44, 46, and 37 of G.L. c. 53, is im-

permissible. If the law of the Common-

wealth were to require that nomination

papers be signed only by regular members F

App. F-19

of the party, contrary toc. 53, § 46, or

that only regular members of the party may

vote in the primary, contrary toc. 53,

8 44, as it would be amended by House No.

5852, would be less intrusive on a poli-

tical party's constitutional rights. How-

ever, we express no opinion on whether it

would be sufficiently less intrusive to

be constitutionally sound, since that is

not the question before us, nor need we

consider whether any proviso of the Con-

stitution of the Commonwealth might pro-

hibit the proposed enactment.

(2) We answer question number 2,

as interpreted by us above, as follows:

If House No. 5852 were approved, G.L. c.

53, 8 44, as thereby amended, would abridge

the constitutional rights of the Democratic

party and its members to associate by al-

lowing candidates to be placed on the

~

App. F=20

Democratic State primary ballot in contra-

vention of the party's charter.

The foregoing opinion is submitted

by the Chief Justice and the Associate

Justices subscribing hereto on the 23rd

day of April, 1982.

EDWARD F. HENNESSEY

HERBERT P. WILKINS

PAUL J. LIACOS

RUTH I. ABRAMS

JOSEPH R. NOLAN

NEIL L. LYNCH

FRANCIS P. O'CONNOR

CONSTITUTIONAL AND STATUTORY PROVISIONS:

A. CONSTITUTIONAL PROVISIONS

APG s Bs Bete Be Gee St

No Person shall be a Senator who shall

not have attained the Age of thirty years,

and been nine Years a Citizen of the

United States, and who shall not, when

elected, be an Inhabitant of that State

for which he shall be chosen.

Ot. 35- oes Ss Sse 82

The Times Places, and Manner of

holding Elections for Senators and

Representatives, shall be prescribed in

each State by the Legislature thereof; but

the Congress may at any time by Law make

or alter such Regulations, except as to

the Places of Chusing Senators.

CONSTAT 1

First Amendment:

Congress shall make no law...abridging

the freedom of speech,...or of the right

of the people peacably to assemble, and to

petition the government for a redress of

grievances.

XIVth Amendment:

No State shall make or enforce any law

which shall abridge the privileges or

immunities of citizens of the United

States; nor shall any State deprive

any person of life, liberty, or property,

without due process of law; nor deny tc

any personwithin its jurisdiction the

equal protection of the laws.

XVIIth Amendment:

CONSTAT 2

The Senate of the United States shall

be composed of Two Senators from each

State, elected by the people thereof, for

six years; and each Senator shall have one

vote. The electors in each State shall

have the qualifications requisite for

electors of the most numerous branch of

the State legislature.

When vacancies happen in the

representation of any State in the Senate,

the executive authority of such state

shall issue writs of election to fill such

vacancies: Provided, That the legislature

of any State may empower the executive

thereof to make temporary appointments

until the people fill the vacancies by

election as the legislature may direct.

CONSTAT 3

STATUTES:

42 U.S.C. 1983:

Every person who, under color of any

statute, ordinance, regulation, custom, or

usage, of any state or Territory,

subjects, or causes to be subjected, any

citizen of che Gaited States or other

person withn the jurisdiction thereof

to the deprivation of any rights,

privileges, or immunities secured by the

Constitution and laws, shall be liable

to the party injured in an action at law,

suit in equity, or other proper proceeding

for redress.

28 U.S.C. 1652:

CONSTAT 4

The laws of the several states, except

where the Constitution or treaties of the

United States or Acts of Congress

otherwise require or provide, shall be

regarded as rules of decision in civil

actions in the courts of the United

States, in cases where they apply.

2 U.8.6. 433(¢1):

The term "election" means--

KK

(B) a convention ..of a

political party which has authority to

nominate a candidate.

2 U3... 43142):

The term "candidate" means an

individual who seeks nomination for

election...to Federal office...

CONSTAT 5

2 Us8.6. $31..(3)

The term "Federal office" means the

office of Senator ...in Congress..."

Mass. Acts 1973 c. 429:

Chap. 429 AN ACT REPEALING THE LAW

PROVIDING FOR PRE-PRIMARY

CONVENTIONS OF POLITICAL

PARTIES.

Be it enacted, etc., as follows:

Secs. 1 through 3 of the 1973 Act are

omitted as they remove peripheral

references from the General Laws and

are in the Appendix, Vol. 3, Supple-

mentary, filed in 84-1440. Section 4

below removed the actual enabling

sections. The next page is CONSTAT 17

CONSTAT 6

SECTION 4. Section 44 of said

chapter 53 is hereby amended by striking

out the first and second sentences and

inserting in place thereof the following

two sentences:--

The nomination of candidates for

nomination at state primaries shall be by

nomination papers. In the case of offices

to be filled by all the voters of the

commonweath[sic], nomination papers

shali be signed in the aggregate by at

least ten thousand voters.

SECTION 5. Sections fifty-four, fifty-

four C and fifty-four D of said chapter

fifty-three are hereby repealed.

(This bill, returned by the Governor,

to the House of Representatives, the

CONSTAT 17

branch in which it had originated, with

his objections thereto, was passed by the

House of Representatives, June 19, 1973,

and, in concurrence, by the Senate, June

19, 1973, the objections of the Governor

notwithstanding, in the manner prescribed

by the Constitution; and thereby has "the

force of a law".)

Mass. Gen. Laws, Chapts. 53, 54,

Method of Nomination Papers:

Mass. ams, Laws, Chapt. 53, Sec. 2:

_eeecandidates of political parties for

all elective offices,...shall be elected,

in primaries or caucuses,...All

nominations and elections in primaries and

CONSTAT 18

aie

caucuses shall be by direct plurality

vote. No candidates shall be nominated,

and no member of a political committee or

coonvention delegate elected, in any other

manner than is provided in this

chapter....

Mass. Gen. Laws, Chapt. 53. Sec. 34:

Except where vacancies caused by

death, withdrawal or physical disability

are filled, no names shall be printed on a

ballot other than those presented on

nomination papers,

Mass. Gen Laws, Chapt. 53, Sec. 44:

The nomination of candidates for

nomination at state primaries shall be by

nomination papers. In the case

of...United States senator, nomination

CONSTAT 19

papers shall be signed in the aggregate by

at least ten thousand voters;

Mass. Gen. Laws, Chapt.54, Sec. 41:

Ballots for the use of voters ina

voting precinct, polling place or town

shall contain the names of all candidates

duly nominated for election therein,...

Place of “Chusing" of United States

senators:

Mass. Gen. Laws, Chapt.53, Sec. 28:

State primaries shall be held on

the seventh Tuesday preceding biennial

state elections....

**K

Except in Boston, primaries shall be

held wholly or partly by wards, precincts

CONSTAT 20

or towns, as the aldermen or selectmen may

designate.

Mass. Gen. Laws, Chapt. 54, Sec. 24:

The aldermen in cities, except where

city charters provide otherwise, and the

selectmen of towns divided into voting

precincts, shall, twenty days at least

before the biennial state...election...,

designate the polling place for each

voting precinct and cause it to be

suitably fitted up and prepared therefor.

CONSTAT 21

Primaries mandated:

Chapter 53:

Section 41. Primaries shall be held

for the nomination of candidates of

political parties for all offices to be

filled at a state election, except

presidential elector. Sections forty-two

to fifty-three A, inclusive, shall apply

to such primaries.

[Former sections, now repealed, that

authorized party pre-primary conventions]:

Chapter 53:

[Former Section 54]:

[PROVISIONS APPLYING TO PRE-PRIMARY

CONVENTIONS

Caption amended St.1932, c.310,

Sec.21,c.346,Sec.2,s8st.1953,c.406,Sec.7

Sec. 54. State conventions of political

parties. Beginning in the year nineteen

hundred and fifty-four, a political party

shall, upon the call of its state

committee, but not later than June

twentieth and not earlier than June fifth,

in a year in which a biennial state

elections is held, hold a state convention

for the purpose of adopting a platforn,

electing such number of members at large

of the state committee as may be fixed by

the convention, and endorsing for

nomination candidates for the offices -o

be filled by all the voters of the

commonwealth, to be voted for at the

ensuing state primary, and for such other

purposes consistent with law as the

convention may determine. Such convention

shall consist of delegates chosen by the

ward and town committees. The number of

delegates shall be one from each ward and

town and one additional for every one

thousand votes or major fraction thereof

cast at the preceding biennial state

election, in such ward or town, for the

respective party's candidate for governor.

Each such ward or town committeee desiring

representation at such conventio shall,

within fourteen days after a meeting duly

CONSTAT 23

called for the pur- pose of selecting a

delegate or delegates, notify the

respective city committee, in the case of

a city, or the state committee, in the

case of a town, but in no case shall such

notice be given less than fourteen days

prior to the date appointed for the

opening of such convention. No vacancy

shall be filled for any reason. Nothing

herein contained shall affect or diminish

the operation of the laws relating to

state primaries contained in sections

forty-one to fifty-three, inclusive. As

amended St.1932,c.310, Sec. 21;St.1935,

c.482,Sec.1; St.1936, c.11,Sec.1; St.1937,

c.24,Sc.3; St.1938, c.346,Sec.2;St.1941,

c.337,Sec.11;St.1953, c.406,Sec.7;St.1955,

c.138,Sec.4;St1957,c.278,Sec.2. ]

[Former Sec. 54C]

[Sec. 54C. Certificates of nomination

of candidates endorsed by state

ee |

Every certificate of nomination of

candidates endorsed for nomination by a

state convention shall state that the

nomineee has been endorsed for nomination

at such convention and shall include such

facts as are required by section eight.

such certificates shall be signed, sworn

to and filed as required by section five.

Each such candidate shall, within ten

days from the day when the convention

terminates, file with the state secretary

his written acceptance of the nomination,

otherwise his name shall not be printed on

the ballot as a candidate for the office

to which he was nominated, and he may add

the eight-word statement authorized by

section forty-five. such candidate may

not withdraw euch acceptance. Added

St.1953,c.406,Sec.8. ]

[Former Sec. 54D]

[Sec. 54D. Pre-primary conventions;

procedure; officers; penalties. Delegates

shall be seated in groups by senatorial

districts as determined ™ the state

committee. The convention shall be called

to order by the chairman or acting

chairman of the state committee, or in the

absence of either, then by a person

designated in such manner as the rules of

the party shall prescribe. The person who

calls the convention to order shall

preside until the election of a permanent

chairman. He shall appoint a temporary

secretary to receive the roll of the

Tr a monitor from each group

who shall receive the credentials of

delegates and present them to the

temporary secretary.

The convention shall not proceed to

the election of a permanent chairman or

; transact any businesss until the time

fixed for the opening thereof, nor until a

majority of the delegates named in the

official roll shall be present. It shall

Pat

then elect from among its delegates a

permanent chairman and a permanent

secretary, neither of whom shall be an

officer of the state committee, and shall

complete its organization. It shall make

suitable rules for the conduct of its

business, the order of which shali follow

the purposes of the convention as stated

in section fifty-four. The permanent

seceretary shall keep the records of the

convention and transmit the same to the

state secretary who shall retain them for

a period of one year.

The permanent chairman and permanent

secretary shall be chosen upon a call of

the official roll. Committees of the

convention shall be appointed by the

convention, or by the permanent chairman,

as the convention may order. When the

vote of the convention is taken upon the

election, nomination or endorsement for

nomination of any candidate, the roll of

the delegates shall be called and each

delegate when his name is called shall

arise in his place and announce his

choice, except that when there is only one

candidate to be voted for, the roll need

not be called, and except also that the

monitor of a group, unless a member of the

group objects, may announce the vote of

such group.

A delegate to a pre-primary convention

who corruptly requests or accepts a gift

or gratuity under an agreement or with an

understanding that his vote shall be given

for any particular candidate or any person

who offers such a gift or gratuity with

such understanding or agreement shall be

punished by a fine of not more than five

hundred dollars or by imprisonment for not

more than thirty days or both. Added

$t.1953,c.406,Sec.8. ]

FROM THE AGREED UPON LEGISLATIVE HISTORY

FROM THE COURT BELOW

"UNREFORMING THE PARTIES" BY J. PATRICK

DOBEL and RONALD R. STOCKTON

Published in COMMONSENSE, Summer, 1979

Something is clearly wrong with our

political system. The symptoms of mal-

function are obvious; individual partici-

pation has dropped precipitously; faction-

alism has increased and wields greater

impact; political debate has shifted from

substantive issues to issues of symbolism

or of ad hoc self-interest; individuals

move from oblivion to the centers of power

with astonishing and disturbing ease;

fewer Citizens than ever before identify

with political parties; faith in public

institutions declines in a rapid spiral.

Ll

While many factors contribute to

these tendencies, a fundamental political

problem is that political parties are not

performing their functions. Without

working parties, social cohesion and the

ties of one individual to another break

down as do the linkages of individuals to

political structures. The political

effectiveness of the system, particularly

its ability to mediate conflict and arrive

at a workable consensus, is also consider-

ably impaired.

We believe much of the decline of the

party as an effective institution can be

traced to certain changes and “reforms”

made in recent years. After discussing

the functions of the parties and the

consequences of their disruption, we will

propose several not-too-modest “unreforms”

to revivify the parties.

Functions of Parties

It is intriguing that in many

countries where there is no organized

opposition and no system of free elec-

tions, the government nevertheless finds

it desirable to maintain political parties

and to hold periodic elections. In Ameri-

can society, we think of elections as

primarily serving to select between policy

alternatives but, in fact, selection of

policy alternatives is only one of several

functions performed by an election cam-

paign. On along range, basis, the others

are more important.

First, elections and parties develop

linkages between the individual and the

political system.

The next page is L 22.

f

’

wo

‘.

’

'

‘

,

.

.

“4 -

'

¢

‘

~

'

i

‘

‘

¥

: y

- . : : _—————— Ss

; ie: a nies eh a re

fp Si AO ES Rl AID SE PTL rey + oy ae [ec |

a3 ns eS = - = : i

= inn amine a ern, Ae Sa le ae eh ~

5 ; ‘. wake Ti = ow Fas aaa =. oa zs ied

— LJ a tc ie eit i nil i Gi ia, ale

ine 79 — ————— ns

acento ae — anime mee ‘mate ¢ ee ee a ee

ante thy = 9 wine Saray ede See re ee Patt b> rete ae She me ee ee ee

eet a a a ee ’ Fr er ro : fo

wa ee? ee ee ee ee eee iy FP, > tpt

The proposals encompass three areas:

primaries and conventions, the civil

service merit system, and the expenditure

padi iaiiain of candidates. Although the

proposals center on the federal level,

their analogues apply at the state and

local levels.

First, all party decisions relating

to policy and candidates should be made by

conventions at which no more than one-half

of all delegates are chosen by primaries.

This rule would apply at both federal and

state levels and would mean that delegates

to the national nominating conventions

would be chosen by state conventions

rather than by direct vote of the pubiic.

-We feel strongly that primaries should be

used to send a message to the conventions

and not to make decisions. This proposal

recognizes the role of primaries as a

check on bossism yet avoids the dangers

inherent in an unlimited primary.

Second, a modified spoils system

should be introduced, All policy-making

positions should continue serving at the

behest of the administration in power. In

non-policy civil service grades, however,

5-10 percent of all new federal appoint-

ments which open as a consequence of

retirement or new funding should be filled

on the basis of demonstrated civil service

competence and the political recommenda-

tions of the party. These positions would

be allocated to state party commissions on

the basis of the parties' performances in

the last presidential election. Seventy

percent of the positions would go to the

party which carried the state and 30

percent would go to the losing party.

Additionally the Hatch Act should be

nen) ch

repealed or modified to allow government

employees full participatory rights.*

*(Ed.Note) Lest the Democratic authorship

of the article be in doubt, this proposal

is one on which most Republicans, in the

past, have disagreed with the authors,

while not wholly dissenting from the

notion that a patronage system does have

its virtues. As this issue went to press,

the entire subject was somewhat clouded by

a ruling from the U.S. District Court in

Chicago, that political patronage repre-

sents an unconstitutional deprivation of

equal protection and due process of the

law. Shakman, et al. v. Democratic

Organization of Cook County, Civil No.

69C2145 (1979)

The next page is L 30.

Shifting the balance back to a caucus

and reintroducing spoils takes account of

the fact that real-life politics is a

human activity. Political work requires

time and energy. Most of us do not have

or only occasionally have the fervor to

spend long hours for an ideal or crusade.

But we usually can care if there are

possibilities of real human satisfactions

from working with people, having responsi-

bility, influencing and meeting candi-

dates, and going to conventions. It might

even mean a job for oneself or people we

care about.

New decision power and the resources

of new people and patronage will give the

party its own bargaining chips to counter-

act the sources of economic or ideological

political wealth. The self-interest of

candidates will lead them back to work

with the parties: first, the party will

be the focus of critical decisions for

their own continued career; second,

politicians will need the patronage and

have to meet with the state party

apparatus to gain access; third, the party

can once again provide an independent

haven to support its own political

integrity against the specific and rigid

demands of single-interest groups; fourth,

with limits upon media expenditures,

candidates will not be able to ride a

media-coteria route to office and will

need party resources; fifth, candidates

will work with the party in election years

Since all state politicians gain from the

success of the party through the patronage

pool.

The reestablishment of a working

relationship between politicians and their

parties wll make party loyalty an issue

— a the ae The party's new

negotiating position would give it some

small chance of reintroducing some respon-

Sibility and discipline into its own

ranks. Confronting real people in smoke-

filled rooms and conventions is far more

efficacious for political accountability

than making television commercials. Candi-

date training would be more complete:

they would learn bargaining, communica-

tion, and compromise skills, and party

structure would gradually generate new

candidacies from its own ranks. Coteries

would be less closed since candidates

could no longer hide behind television

screens; more hard bargaining would take

place and coteries would be more open and

co-optative.

Our proposals will not end the

paralysis of American politics or create a

new consensus, but .-.-..-

FROM THE AGREED UPON LEGISLATIVE HISTORY

FROM THE COURT BELOW

"DEMOCRATIC COMMISSION DRAFTS PARTY CHART-

ER" BY JEROME MILEUR

Ed McColgan, a former state legisla-

tor and unsuccessful candidate for Con-

gress in 1976, told the Massachusetts

Democratic Charter Commission last fall

that there is "almost no real Democratic

Party organization in this state at the

local level." In his bid for Congress,

McColgan said, only 14 of the 88 Democrat-

ic town and city committees in the First

District gave any financial help, and only

about ten others even "took the time to

meet and endorse me." “You court ward and

town committees," he added, “because you

have to, but in almost all cases they're

an insignificant factor."

McColgan's lament became a familiar

refrain to the 25 members of the Charter

Commission, which was created last Septem-

ber by then-state party chairman Charles

Flaherty after being mandated by vote of

the party's 1977 state issues convention.

The Commission began its work in October

by holding seven public hearings attended

by several hundred Democrats across the

Commonwealth. Several themes ran through

the testimony it hears: the organization-

al decay of the party at its grass roots,

the weakness of the state committee, and

the absence of party discipline and ac-

countability.

In-November, when the Commission

turned to the actual drafting of a chart-

er, there was general agrteement among its

members that significant changes would

M 2

have to be made in party structure if the

desires of rank-and-file Democrats for a

stronger party were to be realized. The

Commission unveiled its work in late

March, and the draft charter now being

circulated to Democratic town, ward and

city committees does indeed call for major

changes in current party structure.

The proposed charter restores the

state convention, which was abolished in

1972 by a Democrat-controlled state legis-

lature. In fact, the charter calls for

two kinds of state conventions -- an

issues convention in odd-numbered years to

adopt a party agenda, and an endorsing

convention to pick candidtes for statewide

(Constitutional and U.S. Senate) offices

in even-numbered years when any are to be

filled. Many local Democrats attributed

the deterioration of town and ward commit-

tees to the elimination of state conven-

tions; and former House Speaker, David

Barrley, at a recent state party gathering

in Northampton, called the vote to repeal

the convention, taken during his tenure as

Speaker, a “mistake."

The draft charter also changes the

way in which conventions are organized and

operate. Delegates are to be allocated to

towns and cities on the basis of "“one-

Democrat, one-vote" formula, and are to be

chosen at local party caucuses open to all

enrolled Democrats and not just to members

of local party committees. Resolutions

for issues conventions are to be developed

through processes beginning at local

caucuses, and are to be adopted by major-

ity vote of the convention. Convention

endorsements are also to be made by major-

ity vote, but any candidate receiving at

least 20 percent of the vote on any ballot

M 4

Pee eee a ee em eg ee Se ee eT

ce ae Pee

SLi rietnene nal en eobi

for a particular office would be permitted

to challenge the convention endorsement in

the state primary.

Several major changes are proposed

for the party's state committee, which was

a target of frequent criticism from town

and ward Democrats, Reflecting recom-

mendations from local Democrats, the

charter provides for the election of state

committee members by direct vote of town

and ward committee members, rather than at

presidential primaries, and for shortening

state committee terms from four to two

years. The first links the state commit-

tee organizationally to local party com-

mittees, and the second affords the latter

frequent opportunity to hold their state

committee members dccountable to local

interests and concerns,

The proposed charter also spells out

the duties and responsibilities of the

state committee. It gives the committee

responsibility for conducting the party's

state campaigns, filling vacancies in

party nominations for statewide or con-

gressional office, formulating and dissem-

inating statements of party policy, and

raising and disbursing monies needed to

operate the party. It furthermore directs

the state committee to set standards for

local committee by-laws, to maintain

regular communication and provide training

and other services for local committees,

and to monitor local committees and elect-

ed officials of the party to assure sup-

port for candidates and policies of the

party.

The draft charter, in addition,

enlarges the size of the state committee

from its present 90 members to approxi-

mately 300, a change intended to broaden

and diversify participation in party

M 6

affairs at the state level. The great

majority of state committee members, 250

of the total, are to be elected by members

of local party committees, with the re-

mainder being ex-officio (Democratic

constitutional officers, state legislative

leaders, members of Congress and of the

national committee) and affirmative action

members. The charter also requires that

the state committee meet at least six

times a year, and that individual state

committee members meet at least twice

annually with town, ward and city commit-

tees within their districts.

The Commission has struggled with the

question of what the district should be

from which to elect state committee mem-

bers. At present, they are chosen from

state senate districts, and the Commission

initially agreed to continue this prac-

tice. It subsequently reconsidered that

ceca ii.

decision, flirted briefly with counties as

the unit from which to elect state commit-

tee members, and settled finally on con-

gressional districts. The problem has

been to find a unit that is simultaneously

fair to all elements in the party --

geographic and other -- and workable. It

is a problem to which the Commission will

no doubt return.

The proposed charter makes severai

changes in the election and organization

of local siete committees. Town and ward

committee members will continue to be

elected at presidential primaries for

four-year terms, but slate voting is

eliminated and instead candidates for

local committee positions will file as

individuals. Officers of local committees

will be elected every two years, rather

than every fovr as is now the case, and

local committees will be required to meet

at least six times a year. these changes,

like those in the state committee, reflect

recommendations made repeatedly during the

Commission's fall hearings.

Another recommendation advanced

frequently by rank-and-file Democrats was

that the Commission authorize local com-

mittees to remove so-called "dead wood"

(inactive members) and to discipline those

who supported candidates of another party.

In this regard, the draft charter provides

that state and local committee members may

be removed through procedures guaranteeing

due process and requiring majority vote of

committee members for the following

reasons: failure to attend half of the

regularly scheduled committee meetings in

a calendar year, public opposition to a

nominee of the party or public support for

another party or candidate thereof, unau-

thorized use of the party name or resourc-

es, Or conviction after appeals are ex-

hausted of a criminal offense other than a

misdemeanor.

The proposed charter does a number of

other things as well. It establishes a

five-member state judicial council respon-

sible for compliance of state and local

committees with the charter and for adju-

dicating disputes arising from it or

between party committees at any level. It

mandates a program of affirmative action

and outreach designed to encourage full

participation in party affairs at all

levels by all segments of the population.

Finally, it requires the state committee

to adopt codes of ethical conduct and fair

ampaign practices for all party members

and candidates, requires party meetings at

all levels to be open to the public, and

eliminates secret and proxy voting.

A Worcester Democrat tcld the Commis-

sion last fall, “People who are Democrats

have the right to expect that they'll have

something to say about what their party

and its officials do." The proposed party

charter is designed to give rank~and-file

Democrats that right. The charter has now

gone to Democratic town, ward and city

committees for their reactions, after

which the Commission will make revisions

as seem appropriate. The Commission's

final draft will be submitted for ratifi-

cation to a state charter convention

presently planned for next September. It

will be an opportunity for Democrats in

Massachusetts to move toward the strong

and responsible party so many desire. It

may be the last such opportunity for some

time to come.

FROM THE AGREED UPON STATEMENT OF FACTS IN

THE DISTRICT COURT

As Incorporated from the Agreed Upon

Statement in Langone:

1970 Convention

28. The State Democratic Party held

a pre-primary convention on June 12, 1970.

29. The delegates to the 1970 State

Democratic convention were selected in

accordance with G.L. c. 533 Secs. 54-54D,

as then appearing, and the conduct of the

convention and the qualifications of

candidates to appear on the primary ballot

were governed exclusively by the existing

State statutory scheme.

1972 Convention

30. The State Democratic Party held a

pre-primary convention on June 10, 1972.

31. The delegates to the 1972 State

Democratic convention were selected in

accordance with G.L. c. Secs. 54-54D, as

then appearing, and the conduct of the

convention and the qualifications of

candidates to appear on the primary ballot

were governed exclusively by the existing

state statutory scheme.

32. There were no pre-primary or

endorsing conventions conducted by the

State Democratic Party between 1972 and

1982.

1979 CHARTER CONVENTION

33. Pursuant to a vote of the

Democratic State Committee, the Chairman,

Charles F. Flaherty, in February, 1977,

appointed a Charter Commission to draft a

proposed charter for the State Democratic

Party.

34. The Charter Commission of the

Massachusetts Democratic Party submitted a

proposed charter which provided in

pertinent part in Article Six, Section

ITl, that:

ENDORSING CONVENTION

There shall be a State Convention

in even-numbered years for the

purpose of endorsing candidates for

statewide offices in those years in

which such office is to be filled.

Endorsements for statewide office of

enrolled Democrats nominated at the

Convention shail be by majority vote

of the delegates present and voting,

with the provision that any nominee

who recieves at least 20 percent of

the Convention vote on any ballot for

a particular office may challenge the

convention endorsement in a State

Primary Election,

34A The documents which are attached

hereto as Attachments 7A through 7D are

true copies of documents which are

attached hereto as Attachments

[legislative history documents included in

this appendix] are true copies of

documents which were available to the

Charter Commission during its

deliberations.

35. The delegates at the 1979 Charter

convention were elected at caucuses on

March 24, 1979, conducted in each ward and

town in the Commonwealth. Approximately,

30,000 individuals participated in the

caucuses.

36. Any and all registered democrats

N 4

could take part in the caucuses which

elected the delegates to the 1979 Charter

Convention. Registration was determined

by official city or town records. There

was no requirement establishing the length

of time and individual had to have been

enrolled in the Democratic Party prior to

taking part in the caucuses which elected

delegates to the 1979 Charter Convention.

37. A convention of the State

Democratic Party was held on May 19, 1979

for the purpose of adopting a Charter for

the State Democratic Party.

IK

39. On May 19, 1979, a notice was

distributed to all delegates attending the

1979 Charter Convention. A true copy of

that notice is attached hereto and

incorporated herein as Attachment No.

8.{["Important Notice" legislative history

document included in this appendix]

KK

42. Defendant Michael J. Connolly, as

a Democrat holding the position of

Secretary of the Commonwealth, was and is

a member of the Democratic State

Committee. As a member of the Democratic

State committee, he attended the Charter

Convention as a voting delegate...

OK

44. During the November 17, 1979

‘continuation of the Charter Convention an

amendment was adopted to amend Article

Six, Section III, by substituting "a5"

N 6

in place of “208”.

45. The question of whether

legislation would be necessary to

implement the 15% requirement imposed by

Article Six, Section III of the Charter

was discussed by the Convention delegates

and was unresolved.

46. The provisions of Article Six,

Section III, as they currently read, were

adopted at the November continuance of the

Charter Convention.

1982 CONVENTION

**

58. If allowed, Chester G. Atkins,

the Chairman of the Democratic State

Committee would testify that he stated at

said meeting his opinon that the case of

Democratic Party of U.S. v. Wisconsin, 450

U.S. 107 1981), could make Article Six,

Section III and the "15 percent rule"

contained therein effective without

legislation.

KK

61. Delegates to the 1982 Endorsing

convention were elected at caucuses

conducted in each ward and town of the

commonwealth on tobouets 6, 1982. The

primary notice of the 1982 Democratic

caucuses given to registered Democrats was

by newspaper announcements run at least

once in every daily or weekly newspaper

throuyhout the the Commonwealth. Notices

were also sent to affirmative action

organizatons throughout the Commonwealth.

62. Any and all registered democrats

could take part in the February 6, 1982

caucuses. To take part in the February 6,

1982 caucuses an individual had toahve

been enrolled in the Democratic Paty on or

before December 31, 1981, as determined by

official city or town records.

63. Approximately 100,000 individuals

participated in the caucuses held on

February 6, 1982.

CK

97. Since 1972, no Democrat who has

obtained the nomination of the Democratic

Party at a state primary for a statewide

elective office, has lost in the general

election,

Legislative History, Att.8, refered to in

39 above:

DEMOCRATIC STATE COMMITTEE Chet Atkins,

Chairman, 14 Beacon Street*Suite

719*Boston*Massachusetts 02108*(617) 367

4760

IMPORTANT NOTICE

TO:CONVENTION DELEGATES

FROM: DEMOCRATIC STATE COMMITTEE

There is presently a case before the

United States Supreme Court (Marchioro v,

Chaney) which may directly affect the

actions taken at today's convention.

In July of 1978, the Washington State

Supreme Court ruled on a case involving a

conflict between state law and party law.

By a vote of 5-4, the court held that the

provisions of state law prevailed over the

N 10

provisions of the state's Party Charter.

This decision has been appealed to

the U.S. Supreme Court. The

decenting[sic] opinion from the Washington

State Supreme Court held that a Party's

internal organization should. be decided by

the Party without regard to state law.

There is a distinct possibility that

the decision of the Washington State

Supreme Court will be reversed by the U.S.

Supreme Court, and that a Party Charter

will be held to supersede state law.

Please keep this in mind when voting

on the Charter,

N ll