# Reply Brief — Libertarian Party of Virginia v. Davis

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1986
- **Citation:** 475 U.S. 1013

## Text

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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1167%3A3. Public record. Not legal advice.