Reply Brief — Libertarian Party of Virginia v. Davis

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me Court, us.

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FEB 14 996

JOSEPH F. SPanio: WR

CLERK

eenenes

NO. 85-964

In The

Supreme Court of the Gnited States

October Term, 1985

LIBERTARIAN PARTY OF VIRGINIA, et al.

Petitioners,

vs.

EARL DAVIS, et al.

Respondents.

REPLY TO OPPOSITION TO

PETITION FOR CERTIORARI

JAMES J. FEATHERSTONE *

Santarelli, Choate, 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 Philadeiptva, PA 19106 (215) 928-1900

TABLE OF CONTENTS

ARGUMENT Page

l. The District Court

Improperly Granted, And

The Court of Appeals

Affirmed The Grant Of, A

Motion To DiSmiSS...eeeeee 1

2. The State Board's

Argument Itself Belies

The Conflict Between

Bergland v. Harris

And THiS CaSC.ecccccccves 4

3 The Confusion Of The

Lower Courts And The

State About Anderson

Mandates A Grant Of

COPS SPO E b & 626 646658860665 ll

| 8 I ea iene i

APPENDIX D

Affidavit of Mark Zola,

Campaign Director, Tidewater

Virginia, Socialist Workers

Party

APPENDIX E

Map of Congressional

Districts of Virginia

TABLE OF AUTHORITIES

Page

Cases:

Anderson v. Celebrezze,

460 UeSe 780 Oho’ Serer. ee 5,8,10,

hacaa

Bergland v. Harris,

707 F.4d i551 (Lith Circ. 1985)... 4,8,6,7,

Conley v. Gibson, 355

UeSe 41 (2997306060600 60beeeeeune 1

Jenkins v. McKeithan,

S3S Vee GA4 TIPS) 6eeennsaeeesce 2

Libertarian Party v. Davis,

601 F. Supp. 522 (W.D.Ky. 1985).. 5,6,15

Libertarian Party of Alabama

ve Wallace, 586 F. Supp.

399 (M.D.Ala. S9GC) cecavcasesedess 15

Libertarian Party of Oklahoma

ve Oklahoma State Election

Board, 593 F. Supp. 118

(W.D.OKla. B9U64) 06665666060 00648 8% is

Libertarian Party of South

Dakota v. Kundert, 579 F.

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

Libertarian Party of Texas

ve. Fainter, 741 F.2d 728

(Sth Cif. 39G6) 6c weedseeesewicinae 15

- ii-

Libertarian Party of

Virginia v. Davis, 591

F. Supp. 1561 (E.D.Va. 1984)..... 5,6

Libertarian Party of

Virginia v. Davis, 766 F.2d

865 (4th Cile 1985) cccccccececece 5

Munro v. Socialist Workers

Party, prob. jur. ntd.,

54 U.S.L.W. 3447 (UsSs

January 14,1986)

(No. 85-565) ccc eveeseesessesesese 14

Tashjian v. Republican Party

of Connecticut, prob. jur.

ntd.. 54 U.S.L.W. 448,

(U.S. January 14, 1986)

(No. 85-766) eevee enevrereseseseesse 14

Statutes:

Neb. Leg. Bill No. 424, filed

April 2, 1985 [amending

Neb. Rev. Stat. § 32-526,

(Reissued L9AZ) Teweccvccnnveseves 14

Vae Code S24. 1LH1L5G eee eee sree eevvess passim

Rules:

Fed. R. Civ. Pros 8(a) (2) eeeeeeees 2

Fed. R. Civ. Pro. 12(b) (6) ......- 1

- iii -

Other Authorities:

Congressional Districts of

the 98th Congress, Virginia

(Bureau Of the CenSuS LOB3d)eeecece

Facts About the Presidents,

(4th ed. (2 | PASSE eS pag yl

Gibson, “Groups Fight Ballot

Measure," The Charlottesville

Progress, Feb. 4, 1982, p. B1.....

Statistical Abstract of

the United States (1985).....ceeee

Statistics of the Presidential

and Congressional Election

Of November 6, 1984, U.S.G.P.O.

SS680466 606866 6065 665666600080

Turner, “ACLU Protests Latest

State Changes," Afro,

July. 3, Buh 666b bb hee 6 ehh eeseeiee

Whitley, “ACLU Charges State

Election Law is Biased,"

Richmond News Leader,

SEND 256 LOSS eesesseseseseces

World Almanac, (1986)....eee.

Page

13

ll

10

13

12

10

10

12

ARGUMENT

l. The District Court Improperly

Granted, And the Court of

Appeals Affirmed The Grant Of,

A Motion To Dismiss

At the outset, it must be empha-

sized that this case is before this

Court as a result of the Court of

Appeals' affirmance of the District

Court's granting of a motion to dismiss

the complaint for failure to state a

claim upon which relief can be granted,

pursuant to F.R.C.P. 12(5)(6). Faced

with a Rule 12(b)(6) motion, the

District Court was obliged to determine

whether that it appeared “beyond doubt

that the plaintiff can prove no set of

facts in support of his claim which

would entitle him to relief." (emphasis

added). Conley v. Gibson, 355 U.S. 41,

45-46, 2 LL. Ed.2d 80, 84 (1957).

Moreover, in ruling on a motion to

- 2 «

dismiss, “the material allegations of

the complaint are taken as admitted."

Jenkins v. McKeithen, 395 U.S. 4ll, 421

(1969). Finally, “the complaint is to

be liberally construed in favor of

plaintiff." Ibia.t/

In this case, after setting forth

the interests of the plaintiffs, the

complaint alleged that the plaintiffs

(hereinafter, “the Party") “will § be

denied their constitutionally guaranteed

right to vote in the November, 1984

general election for the candidates of

their choice if the names of electors

selected by them are not printed upon

the official ballot...." Complaint,

12. Moreover, the complaint alleged

1/ hese canons of interpretation result from

the requirement of Rule 8(a) 2 of the Federal

Rules of Civil Procedure which require that a

complaint contain only “a short and plain state-

ment of the claim showing that the pleader is

entitled to relief... ."

eZ e«

that the distribution requirement

“places an unconstitutional burden on

the voting and associational rights

guaranteed to" the Party. Complaint,

13. Thus, the complaint plainly

alleged the burden imposed upon. the

Party by the distribution requirement to

a degree sufficient to make clear that

it was not “beyond doubt" that the Party

could prove “no set of facts" entitling

it to relief. Indeed, merely having

asserted that fundamental rights. had

been violated in the context of a

presidential election is sufficient to

demonstrate that it is not “beyond

doubt" that there exists “no set of

facts" which would entitle the Liber-

tarians to relief.

That the Party did not allege that

it made “any attempt at all to comply”

(State Bd. Brief, at 5) with the distri-

bution requirement is irrelevant’ for

purposes of a motion to dismiss; the

Party's efforts to comply would only

become factors at a trial at which the

court could analyze the character and

magnitude of the injury to the

constitutional rights of the Party.

Thus, this Court should, at the very

least, hold that the Party may . be

entitled to relief and remand the case

for trial.

2. The State Board's Argument

Itself Belies The Conflict

Between Bergland v. Harris And

This Case

In its Brief, the State Board at-

tempts to deny tne existence | any

conflict between the lith Circuit deci~-

sion in Bergland Ve Harris, 767 F.2d

L551 (llth Cir. 1985) and the decision

»9£ the Court of Appeals here. State Bd.

Brief at p. 9. The Board's argument

about the relevance of the allegedly

distinguishable facts of Bergland, how-

——

» § «

ever, merely serves to underscore and

re-emphasize the actual conflict -- the

Bergland Court's call for the use of the

three stage analytical process set forth

in anderson2/ and its remand for lack of

an adequate factual record consistent

with Anderson. Here, by contrast, the

Fourth Circuit did not even attempt to

follow Anderson with regard to the need

for such a_ factual inquiry. Compare

Bergland, 767 F.2d, above, at 1553-4

with Libertarian Party of Virginia Vv.

——

Davis, 766 F.2d 865, 867-8 (4th Cir.

1985).

As already noted above, the Motion

to Dismiss in this case was erroneously

handled by the District Court, thereby

totally forestalling any such factual

inquiry. See Libertarian Party of

/

2/ petition at p. ll, Anderson V. Celebrezze,

460 U.S., above, at 789.

Virginia v. Davis, 591 F. Supp. 1561

(E.D.Va. 1984). The Court of Appeals

then compounded this critical error by

affirming the District Court. If the

Motion to Dismiss had been properly

denied below -- or if the appeal had

been properly upheld and the case

remanded for such fact finding -- the

conflict between this case and Bergland

would not now exist. At trial, the

Party could have fully demonstrated the

real and actual effects of being

required "to obtain less than one signa-

ture per day in each congressional dis-

trict. « « «” State Bd. Brief, at p. 4.

At trial, the Party was prepared to

Drove its claims that the "all 10 con-

gressional districts" distribution re-

quirement in Virginia imposed insur-

c

mountable additional difficulties of

time, expense and logistics upon it and

on other truly independent parties2/

which also were unable to get on the

1984 Virginia ballot.4/

Thus, the State Board Brief clearly

confuses the facts in Bergland with the

holding about fact finding in Bergland,

perhaps intentionally.

The State Board is Similarly con-

fused about the impact of the "witness-

ing" requirement at this stage of the

proceedings. Rather than being directly

challenged in the instant Petition, the

witnessing requirement must now be

viewed as just one additional part of

3/ see, e.g., the Affidavit of an official of

Socialist Workers Party attached hereto as

Appendix D.

4/ The state Board contends that the distribu-

tion requirement could not have been “an insur-

mountable obstacle" because independent "groups"

like the Party were able to get on the 1984 bal-

lot. State Bd. Brief, at p. 4, n. 2. #£=‘This

contention is misleading because the only inde-

pendent listed on the 1984 ballot was neither a

"party" nor a “group”, but rather a wealthy

individual without a party constituency, philo-

sophy, etc.

the matrix of burdens’ which, when

"viewed in full," effectively and com-

pletely stifle independent party access

to the Virginia ballot 2/ Similarly,

included in that matrix is the distribu-

tion requirement itself, as well as the

complete absence of = any "write-in"

alternative, a factor also ignored

below.

Another relevant fact not reviewed

below, but crucial to the second and

third stage of the Anderson analytical

process, is the total lack of any demon-

Strated justification or need for the

State's exclusion of independents in the

legislative history©/ or the public

5S/ Anderson, above, at 789.

&/ ‘This lack of any justification is documented

by the existing public record on the legislative

history of §24.1-159. Included in the State's

1982 letter to the U.S. Justice Department under

the Voting Rights Act, is the following narra-

tive statement of the Bill's history:

(Footnote continued)

~ 2 AS ene na noenelalalll

record mi

"Factors leadina to the proposed

changes included:

(1) Evidence that Virginia's require-

ments were lower than those of most

states in the region.

(2) Concern that a resulting prolife-

ration of minor candidates would cause

a long and unwieldy ballot, machine

complications and administrative

problems.

(3) Desire to ensure that those on the

statewide ballot be legitimate candi-

dates who can demonstrate some state-

wide support for their candidacy."

"Legislative History of S.B. 196,

Chapter 650, 1982 Session.” Letter

dated July ‘30, 1982 from Gerald L.

Baliles, Attorney General of Virginia

to William Bradford Reynolds, Assistant

Attorney General, U.S. Department of

Justice. (Emphasis added).

Clearly, a perception of lower relative

requirements, even if accurate, unsubstantiated

fears of crowded ballots in futuro and an ab-

Stract ideal of statewide support cannot, by

themselves, justify burdens on voting § and

associational rights.

1/ the existing public record on §24.1-159 is

also clear that virtually every major civil

rights and advocacy group opposed the legisla-

tion as creating impossible barriers to indepen-

dent and minority candidates because of the

regional differences in race, density and topo-

graphy.

(Footnote continued )

= 310 «

Rather than relying on ané_é ipse

dixit approach, this Court should grant

certiorari in order to mandate the fact

finding called for by Anderson and, more

recently, by Bergland, so as to review

See, e@.g., Gibson, "Groups Fight Ballot

Measure," Charlottesville Progress, Feb. 4.

1982, p. Bl (ACLU, Common Cause of Virginia,

NAACP, Virginia Taxpayers Association); UPI,

"U.S. Asked to Oppose New Law," Alexandria

Gazette, June 24, 1982; ("B)lack independent

candidates would be hardpressed to get enough

(Signatures) in the mountainous, rural Ninth

District. . ." the ACLU said. "This places a

specific burden on Blacks that is not placed on

Whites because of the uneven distribution of

Blacks in Virginia. . . ."); Whitley, "ACLU

Charges State ELection Law is Biased," The

Richmond News Leader, June 23, 1983 ("‘In ef-

fect, (the distribution sections) require the

candidate to have a statewide apparatus in place

before he/she even begins to campaign. .. .'");

Turner, "ACLU Protests Latest State

Changes," Afro, July 3, 1982, ("This means that

black statewide candidates ‘will face a dispro-

portionate burden in qualifying for election due

to the relative scarcity of black population in

Congressional Districts six through 10,'

according to the ACW. .. .' ‘In order to

collect the 300 - 400 signatures needed to be

certain of the required 200, each candidate will

have to set up a campaign organization in each

Congressional District well in advance of the

election,' the ACLU told Justice in its letter

dated June 22.")

the Party's complaint now before yet

another Presidential election cycle

begins. That this fact finding process

has thus far been totaliy ignored by

courts below in this case is both ap-

parent and dispositive. This failure to

follow Anderson, as demonstrated by the

example of Bergland, requires a grant of

certiorari in this case in order to

clarify the role of federal courts in

ballot access litigation.

30 The Confusion Of The Lower

Courts And THe State About

Anderson Mandates A Grant Of

Certiorari

The State Board's final attempt to

dismiss the petition as de minimis is

transparent and self-serving as well as

unworthy of the dignity of this State,

the Party and the voters .3/ Even if,

8/ For one pointed example, Virginia has pro-

vided five Presidents of the United States.

Facts About The Presidents, (4th Ed. 1981). For

another, the Virginia Bill of Rights served as a

(Footnote continued)

arguendo, Virginia is now and will al-

ways be “unique" in imposing its border-

to-border distribution requirement2/,

the effect of such a restriction on the

voters of the Old Dominion alone would

Surely be enough mandate this Court's

attention _10/

model for the Federal Bill of Rights. Finally,

if each State's laws are to be dismissed seria-

tim as of no consequence to this Court, by this

Togic a nationwide adoption of similar "all

State" distribution requirements by each of the

other states could occur one state at a time.

Such an adoption of distribution requirements in

all 50 states would result in no new independent

candidates or parties nationally if the voters

in only one Congressional District in each state

were to decide against such candidates. Such a

result is the reductio ad absurdum of the

State's Board argument that Virginia 1s unique

and does not merit this Court's attention.

39/ State Bd. Brief, at p. ll.

10/ Virginia is now the thirteenth largest state

in total population and the fourteenth in terms

of numbers of voters in the last Presidential

election. In numbers of electoral votes, Vir-

ginia is tied with Indiana and Georgia for

eleventh place, with each state having a total

of twelve electoral votes. Sources: Statistics

of the Presidential and Congressional Election

of November 6, 1984, Ppp. 68-69, U.S.G.P.O.

(1985); World Alamanac, p. 653 (1986).

(Footnote continued)

Mii.

=

The fact is, however, that just

this term, the Court is already faced

with two other cases involving the in-

terpretation and application of Anderson

Overall, Virginia is the sixteenth state in

terms of density, with approximately 140 people

per square mile. This compares, for example,

with New Jersey, the most dense state with 1,000

people per square mile and Nebraska, the 4lst

state with 21 people per square mile. However,

the ten Virginia Congressional Districts range,

as follow, in density from 1,712.6 people per

Square mile to 59 people per square mile, or

from far denser than New Jersey to the density,

for example, of a state such as Vermont:

Rank By -Va. Cong. Population Comparison

Density Dist. Density States

1 Dist. 2 1712.6 NJ-1000

2 Dist. 8 921.3 RI- 906

3 Dist. 3 750.6

4 Dist. 10 725.1 CT- 644

5 Dist. l 125.7

6 Dist. 4 104.8 NH- 107

7 Dist. 6 102.0 GA- 99

8 Dist. 7 83.3 WI- 87

9 Dist. 9 73.7 MO— 72

10 Dist. 5 59.0 VI- 57

For the relative sizes of the Congressional

Districts in Virginia, see the map designated as

Appendix E attached hereto.

Sources: Statistical Abstract. of the

United States, p. 11 (1985); Congressional

Districts of the 98th Congress, Virginia., p. 30

(Bureau of the Census 1983).

=» 14 =

and its progeny to two other seemingly

equally “unique"™ state laws 1/ More-

over, other similar distribution re-

quirements -- albeit hardly as draconian

as §24.1-159 -=- already exist in four

other states in three other’ federal

circuits .12/ Petitioners respectfully

suggest that as Virginia goes, so may go

other states in enacting these overly

restrictive and burdensome distribution

requirements .13/ Thu-, other states may

1l/ see Munro v. Socialist Workers Party, prob.

jur.ntd., 54 U.S.D.W. 3447 (U.S. January 14,

1986) (No. 85-565) and Tashjian v. Republican

Party of Connecticut, prob.jur.ntd., 54 U.S.L.W.

3448, (U.S. January 14, 1986) (No. 85-766).

i2/ Petition, pp. 3 - 4, n.2

13/ For example, Nebraska has just recently

adopted such a distribution requirement. Neb.

Leg. Bill No. 424, filed April 2, 1985,

(amending Rev. Stat. of Neb. §32-526 (Reiss.

1943)). If this distribution requirement is

widely adopted elsewhere, the Party's future is

bleak. ‘The Party has already noted the

Graining effect upon it of the costly ballot

access litigation in the 1984 election.

Petition at p. 34, n. 17. To that growing list

of cases must now be added the following elec-

(Footnote continued)

soon adopt distribution requirements

covering areas with equal oor even

greater disparity than Virginia in race,

density or topography. Thus, it may be

Simplistically accurate to say that

"only" a “unique” Virginia law is tem-

porarily at issue today, the Board's de

minimis argument belies the likelihood

that tomorrow may see other such

Statutes enacted. A writ of certiorari

should be granted now to resolve the

Virginia challenge and to forestall such

enactments elsewhere.

CONCLUSION

The State Board's Brief in Opposi-

tion law suits as well: Libertarian Party v.

Davis, 601 F. Supp. 522 (W.D.Ky. 1985); Liber-

tarian Party v. Wallace, 586 F. Supp. 399 (D.C.

Ala. 1984); Libertarian Party of Texas v.

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

tarlian Party of South Dakota v. Kundert, 579 F.

Supp. 735 (D.S.D. 1984); and Libertarian Party

of Oklahoma v. Oklahoma State Election Board,

593 F. Supp. 118 (W.D. Ok. 1984).

tion merely repeats the errors in

analysis made by the courts below in

this case. The Virginia statute requir-

ing Signatures from "all 10" Congres-

Sional Districts places unconstitutional

burdens on the Party and, therefore,

requires a grant of certiorari by this

Court.

Respectfully submitted,

James J. Featherstone*

Santarelli, Smith, Kraut

& Carroccio

2033 M Street, N.W.

Suite 700

Washington, D.C. 20036

Richard E. Gardiner

7404 Estaban Place

Springfield, Virginia

22151

Counsel for Petitioners

*Counsel of Record

Counsel gratefully acknowledges the

assistance of J. Benedict Centifanti,

Law Clerk and Amber Rose Greer, Legal

Assistant, in the preparation of this

Brief.

APPENDICES

APPENDIX D

AFFIDAVIT OF

MARK ZOLA

CAMPAIGN DIRECTOR

TIDEWATER, VIRGINIA

SOCIALIST WORKERS PARTY

(Original Being Filed With the Court)

February 1l, 1986

I, Mark Zola, am the campaign di-

rector of the Tidewater branch of the

Socialist Workers Party, with headquar-

ters in Newport News, Va. In the winter

and spring of 1984 I was the campaign

director of the SWP in Virginia, coordi-

nating our municipal, congressional, and

presidential campaigns.

The Tidewater, Va. branch of the

SWP decided at that time not to make the

effort to win ballot status in Virginia

for our national ticket of Mel Mason for

president and Andrea Gonzalez for vice-

president because of the onerous distri-

bution requirement of the Virginia elec-

tion law.

We thought -- based on previous

experience -- that we could mount the

considerable effort to successfully

collect the necessary number of signa-

tures statewide. However, we concluded

that it would probably not be possible

to meet the requirements in each of the

ten congressional districts.

For a third party such as_ the

Socialist Workers Party, the distribu-

tion requirement of the Virginia elec-

tion law was a major obstacle to our

full participation in the 1984 presiden-

tial elections.

/signed/

Mark Zola

5412 Jefferson Avenue

Newport News, Va. 23605

Sworn to and subscribed before me this

llth day of February, 1986.

Witness my hand and official seal.

Debora A. Pinckney /signed/

Notary Public

My Commission Expires March 24, 1989

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