# Opposition Brief — Manatt v. Arkansas Board of Election Commissioners

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0665%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 818

## Text

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.

ii

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

iv

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).

vi

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

vil

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

ix

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

2

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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3

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.

4

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0665%3A2. Public record. Not legal advice.