Opposition Brief — Manatt v. Arkansas Board of Election Commissioners

No. 91-1837

‘¥n Uke

Supreme Court of the Mnttrd States

October Term, 1991

SCOTT MANATT,

Petitioner,

ARKANSAS STATE BOARD

OF ELECTION COMMISSIONERS,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION

WINSTON BRYANT

Attorney General

Counsel of Record

By: Jeanette L. Hamilton

Assistant Attorney General

200 Tower Building

323 Center Street

Little Rock, AR 72201

(501) 682.2007

Attorneys for Respondent

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QUESTION PRESENTED FOR REVIEW

WHETHER THE LOWER COURTS ERRED IN APPLYING

THE LEGITIMATE GOVERNMENTAL INTEREST

STANDARD, RATHER THAN THE OVERWHELMING

GOVERNMENTAL INTEREST STANDARD, IN

DETERMINING THE CONSTITUTIONALITY OF ARK.

CODE ANN. §7-7-305(c) UNDER THE FOURTEENTH

AMENDMENT EQUAL PROTECTION CLAUSE.

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TABLE OF CONTENTS

Question Presented for Review .............ccccccccsccssscsssseesscceeeseesceeee i

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TABLE OF AUTHORITIES

CASES PAGE

Anderson v. Celebrezze, 460 U.S. 780 (1983) .................... 1,2,3

Anderson v. Martin, 375 U.S. 399 (1964) coeccccccccoccocese passim

McNeil v. Springfield Park District, 851 F.2d 937,

SE CTE 5

Roberts v. Wamser, 883 F.2d 617 (8th Cir. 1989)................... 2

Thornburg v. Gingles, 478 U.S. 30 (1986) .....cccccccccsccssescececeesees 4

CONSTITUTIONAL PROVISIONS:

Constitution of the United States,

I EES OCT CEE 2,3

STATUTORY PROVISIONS:

ee Cy EC ee 1,4,5

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JURISDICTION

The Eighth Circuit Court of Appeals entered its Order

affirming the District Court’s decision on February 26, 1992.

The Order Denying Petition for Rehearing was filed on April

8, 1992. Petitioner seeks review by this Court under Rule

10.1(c).

Respondent submits that this matter should not be

reviewed on writ of certiorari. Rule 10.1(c), invoked by

Petitioner as the basis for jurisdiction, provides that

jurisdiction may be founded upon a decision by a United

States Court of Appeals of an important question of federal

law which has not been, but should be, settled by this Court;

or has decided a federal question in a way that conflicts with

applicable decisions of this Court. Because the Eighth Circuit

Court of Appeals neither decided a question of federal law

which has not been decided by this Court nor decided a federal

’ question in conflict with applicable decisions of this Court,

jurisdiction should not be exercised.

Vv

STATEMENT OF THE CASE

The question presented for review by the Petitioner is

whether the lower Courts applied the proper standard of

scrutiny under the Fourteenth Amendment in determining

the constitutionality of Ark. Code Ann. §7-7-305(c).

Petitioner Scott Manatt is an attorney practicing law

at Corning, Arkansas. He was a Republican candidate for a

position on the Arkansas Supreme Court in the November,

1990, general election in Arkansas.

Prior to the election, on October 18, 1990, Petitioner

filed a complaint in the U.S. District Court, Eastern District

of Arkansas, against the Arkansas State Board of Election

Commissioners, seeking declaratory relief and temporary

and permanent injunctive relief. He alleged that two Arkansas

statutes were unconstitutional as being in violation of the

Voting Rights Act, 42 U.S.C. §1971-1974, and the Fourteenth

Amendment to the United States Constitution. The Fourteenth

Amendment claim was brought pursuant to 42 U.S.C. §1983.

The statutes challenged by Petitioner were Ark. Code

Ann. §7-7-208(h) and Ark. Code Ann. §7-7-305(c). Ark. Code

Ann. §7-7-208(h) provides that a candidate’s party designation

or the term “Independent” shall be placed beside the

candidate’s name on the general election ballot. Ark. Code

Ann. §7-7-305(c) permits a candidate to use a nickname or

professional title on the election ballot. (A-7). Petitioner

contended that these statutes operated to discriminate against

him as a member of the Republican party, the minority party

in Arkansas, and as anon-judge. Petitioner now seeks review

by this Court only of the lower Court decisions as to §7-7-

305(c).

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Petitioner lost the November 6, 1990, election to the

incumbent, Democrat candidate. Prior to the election, on

October 24, 1990, Petitioner filed a Motion for Temporary

Restraining Order and Injunction, which was denied on

October 25, 1990. Petitioner then filed a Notice of Appeal and

Request for Expedited Appeal. An Order was entered on

November 27, 1990, dismissing the appeal.

After a bench trial on July 1, 1991, an Order was

entered by the District Court on July 2, dismissing the

Complaint on the basis that no case or controversy had been

presented and that Petitioner had failed to state a claim for

relief under the Voting Rights Act and the Fourteenth

Amendment. (A-4).

Petitioner filed a Notice of Appeal to the Eighth Circuit

Court of Appeals, who affirmed the lower Court’s decision.

Regarding the Voting Rights Act claim, the Court held that

incumbency status and party affiliation fail to state a claim

under the Voting Rights Act. The basis for affirming as to the

Fourteenth Amendment claim is that the State of Arkansas

has a legitimate government interest in informing the voters

of candidates’ qualifications. (A-2).

The sole question for review is whether the lower

Courts applied the correct standard in determining the

Fourteenth Amendment issue regarding §7-7-305(c).

Petitioner contends that a stricter standard should be applied,

that is, the overwhelming governmental interest standard.

Respondent’s position is that the proper standard of review

was applied.

Respondent will also argue that certiorari should be

denied on the basis that this case neither presents an important

question of federal law which should be settled by this Court

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nor conflicts with any prior decisions of this Court under Rule

10.1(c).

Vili

SUMMARY OF THE ARGUMENT

Petitioner contends that this matter should be reviewed

on writ of certiorari under Rule 10.1(c) because the lower

Courts decided an important federal question which has not,

but should be, decided by this Court; and that the lower

Courts decided a federal question in a way that conflicts with

Anderson v. Martin, 375 U.S. 399 (1964) and Anderson uv.

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

Respondent’s position is that no important federal

question was decided by the lower Courts which has not

already been addressed in this Court. The District Court’s

decision, and the Eighth Circuit Court of Appeals’ decision,

both followed this Court’s rulingin Martin, supra, with respect

to Petitioner’s Fourteenth Amendment claim, the only claim

relevant to the question presented for review.

Regarding Petitioner’s second contention, no issue

was decided by the lower Courts in conflict with this Court’s

decisions in Anderson v. Martin, supra, or Anderson uv.

Celebrezze, supra. Petitioner cites Celebrezze, but offers no

argument as to how an issue in the instant case was settled in

conflict with this Court’s ruling therein. With respect to

Martin, again Petitioner offers no argument directly showing

how the decision in the instant case conflicts with Martin.

With respect to Petitioner’s contention that the lower

Courts applied an erroneous standard, the legitimate

governmental interest standard, in determining that Ark.

Code Ann. §7-7-305(c) is not unconstitutional as being in

violation of the Fourteenth Amendment Equal Protection

Clause, Petitioner confuses the right to vote, a fundamental

right, with the right to run for elective office. Because the

issue is Petitioner’s right to run for office, the Courts applied

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the proper test in determining that a statute allowing

candidates to use titles or nicknames on the ballot was in

keeping with Arkansas’ legitimate governmental interest in

informing voters of candidates’ qualifications.

1

ARGUMENT

I. THIS COURT LACKS JURISDICTION

TO REVIEW THIS CASE ON WRIT OF

CERTIORARI

The United States Supreme Court Rule invoked by

Petitioner as conferring jurisdiction upon this Court is Rule

10.1(c), which provides that jurisdiction may be exercised

“[WIhen a state court or a United States Court of Appeals has

decided an important question of federal law which has not

been, but should be, settled by this Court, or has decided a

federal question in a way that conflicts with applicable

decisions of this Court.” Petitioner argues both: (1) that the

lower Courts decided a federal question which has not, but

should be, settled by this Court, and (2) that the lower Courts

decided a federal question in conflict with Anderson v. Martin,

375 U.S. 399 (1964) and Anderson v. Celebrezze, 460 U.S. 780

(1983).

Petitioner's first argument fails because no important

question of federal law was decided by the lower Courts. With

respect to Petitioner's claim under the Voting Rights Act, the

lower Courts found that Petitioner lacked standing under the

Act. The relevant allegation of Petitioner’s complaint is that

Ark. Code Ann. §7-7-305(c), which allows a candidate for

office to use a nickname or title on the election ballot, violated

Petitioner's rights as a candidate for public office in Arkansas.

In November, 1990, Petitioner ran an unsuccessful race for a

position on the Arkansas Supreme Court against an incumbent

judge. He contends that Ark. Code Ann §7-7-305(c) was

discriminatory against him because it allowed his opponent

to preface his name with the “Judge” on the election ballot,

creating an unfair advantage. The District Court held, and

the Eighth Circuit Court of Appeals affirmed, that Petitioner

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had failed to state a claim under the Voting Rights Act

because only one whose yoting rights have been denied or

impaired has standing under the Act. In other words, the Act

is limited to aggrieved voters and does not extend coverage to

aggrieved candidates for office. See, Roberts v. Wamser, 883

F.2d 617 (8th Cir. 1989).

With regard to the claim relevant to the question for

review, the Fourteenth Amendment claim, the courts below

held that the practice of allowing nicknames or titles on the

election ballot serves a legitimate governmental interest in

informing the electorate as the candidates’ qualifications. As

the lower Courts were following this Court’s decision in

Anderson v. Martin, supra, there is no important question of

federal law raised in these proceedings which has not already

been addressed by this Court. Therefore, the Petitioner’s

first argument urging this Court’s exercise of jurisdiction

under Rule 10.1(c) fails.

Petitioner’s second argument favoring jurisdiction is

that the lower Court’s decisions are in conflict with this

Court’s decisions in Anderson v. Martin, supra, and Anderson

v. Celebrezze, 460 U.S. 780 (1983). A brief review of each of

these cases reveals that there is no conflict between the lower

Courts’ rulings herein and the reference decisions of this

Court.

In Martin, the issue was whether a Louisiana statute

requiring racial designations of candidates on ballots was

constitutional. The Court held that the requirement violated

the Equal Protection Clause of the Fourteenth Amendment

since a candidate’s race does not bear upon his qualifications

for office. The court reasoned that the provision could not

“...be deemed to be reasonably designed to meet legitimate

governmental interests in informing the electorate as to

—See ea

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candidates.” Martin at 433. This language clearly indicates

that provisions which are reasonably designed to meet

legitimate governmental interests in informing voters as to

candidates’ qualifications would past constitutional muster.

The District Court specifically found that the use of party

designations and professional titles on ballots “meet(s]

legitimate governmental interest in informing the electorate

as to candidates.” (A-6). The Eighth Circuit Court of Appeals

affirmed, stating that “the State of Arkansas has a ‘legitimate

governmental interest in informing the electorate as to the

candidates.” (A-3). Clearly, there is no conflict between

Martin and the lower Courts’ rulings herein.

The issue in Celebrezze was the constitutionality of an

Ohio statute requiring an independent presidential candidate

to file a statement of candidacy in March in order to appear on

the November general election ballot. The Court held that a

state’s legitimate interest in voter education did not justify

the burdens on the candidate’s Fourteenth Amendment rights

and the voters’ First Amendment right of association placed

by the statute in question. The Celebrezze case is inapposite.

There is no parallel between that decision and the case at

hand. The Fourteenth Amendment issue in Celebrezze was

whether it was justifiable to treat independent candidates

differently from party candidates. Petitioner cites the case in

the Jurisdiction section of the Petition, but advances no

argument showing how it conflicts with the lower Court’s

decisions herein. Respondent submits that there is no conflict

because the issues are different, and for that reason,

jurisdiction by this Court should not be exercised over this

matter.

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II. THE LOWER COURTS APPLIED THE

PROPER STANDARD OF SCRUTINY

IN DETERMINING THE

CONSTITUTIONALITY OF ARK. CODE

ANN. §7-7-305(c).

The sole question on review is whether the lower

Courts applied the proper standard, that is, the legitimate

governmental interest standard, in determining the

constitutionality of Ark. Code Ann. §7-7-305(c).

In contending that the overwhelming governmental

interest standard should have been applied, Petitioner argues

that the stricter standard is appropriate because the right to

vote is a fundamental right. Respondent agrees that the right

to vote is fundamental, but wishes to point out that the

statute in question cannot be found to interfere with anyone’s

right to yote. Petitioner’s complaint is, rather, that the

provision interferes with his right to run for elective office.

No authority is presented to show that running for office is a

fundamental right, because there is no such authority.

Petitioner argues that the statute gives an unfair edge

to an incumbent because it entitles him to run as “Judge”

whereas the challenger cannot use such a title. He claims

that this results in impermissible “vote dilution.”

A recent decision of this Court reveals that Petitioner

has not stated a claim for vote dilution. In Thornburg v.

Gingles, 478 U.S. 30 (1986), the issue was whether certain

multimember legislative districts in North Carolina impaired

the ability of black voters to elect representatives, in violation

of §2 of the Voting Rights Act. In Thornburg, the Court

analyzes and discusses at length the factors in determining

whether a vote dilution claim exists. Such a claim is based

5

upon allegations of dilution of minority voting strength. Vote

dilution refers to the impermissible discriminatory effect

that a multimember or other district plan has when it operates

to cancel out or minimize the voting strength of racial groups.

See, McNeil v. Springfield Park District, 851 F.2d 937, (7th

Cir. 1988). Receiving fewer votes than one’s opponent does

not constitute having one’s vote “diluted.” If this were the

case, any losing candidate could assert a claim under the

Voting Rights Act by contending that the loss was a result of

unconstitutional “vote dilution.”

Petitioner has mischaracterized the right sought to be

protected in order to qualify for a stricter standard of scrutiny.

Clearly, his complaint goes to his right to run for elective

office rather than his right to vote. Because no fundamental

right was involved, the District Court’s application of the

legitimate governmental interest test, rather than a stricter

standard, was appropriate in determining that §7-7-305(c)

permissibly serves to inform the electorate as to candidates’

qualifications.

III. CONCLUSION.

For the reasons states in this brief, the Petition for

Writ of Certiorari should be denied.

Respectfully submitted,

WINSTON BRYANT

Attorney General

Counsel of Record

By: JEANETTE L. HAMILTON

#86075

Assistant Attorney General

323 Center Street, Suite 200

Little Rock, AR 72201-2610

(501) 682-2007

Attorneys for Respondent