# Brief for the Appellants — Bullock v. Carter > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0327%3A05 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the Appellants - **Published:** January 1, 1972 - **Citation:** 405 U.S. 134 ## Text / -LIBRAR | FILE” Y, - 7 SUPREME cou Of: ) g\ JUL 27 19 RE 2, 20 = SERVER. CLERK: _ NO. 46062 lca IN THE SUPREME COURT OF THE UNITED STATES. OCTOBER TERM,:1970 _ MARTIN DIES, JR. ET AL.., "A plans vs. ‘VAN PHILLIP CARTER, ET AL., _ (A 'ppellees . “On Appeal from the United States District Court for the Northern District of Texas, Dallas Division APPELLANTS’ BRIEF.” - CHARLES F. HERRING - CRAWFORD C. Martin : 906 Perry-Brooks Build- Attorney General of Texas ing Nowa SWHITE . Austin, Texas 78701 First Assistant amonney _ .Estm VAncg, JR. General 1800 First National Bank ALFRED WALKER 7 , Bldg. Executive Assistant Attor- Fort Worth, Texas 76102 ney General Mark F. Hower . -J.C. Davis 508 Southwest National Assistant Attorney General Bank Bldg. Wiu1am.J. Craic El Paso, ocan 79901.. Assistant Attorney General | - JoHN F. Morenzap = =——Ss« «OO. Stutz, IT ~ Special Assistant Assistant Attorney General Attorney General © Pat Barry - 900 Perry-Brooks Bldg.’ Sw ge Attorney General Austin, Texas 78701 age Box 12548, Capitol ; . : tation Austin, Texas 78711 Attorneys for Appellants . OPINION BELOW .............. 54a ee eee eas | JURISDICTION .......... ee 53 Fer i: STATUTES INVOLVED ......... esate lan oe eee ee SUMMARY OF ARGUMENT....... dg eee . 4 CONCLAMION Ed ee, eens ‘CERTIFICATE OF SERVICE..........0...000.2 00... 82 . EXHIBIT “A” ......... Cet reas pe oe Ls. 88 ee #, _ AUTHORITIES ran Page Carrington '\. Rash, $80 U.S. 89, 85 S.Ct. 775, 1A 18 LEd.3d 675 (1965) oes a 212,24 ) A Cipriano v. City offioums, 895 U.S. 701, 89 - S.Ct. 1897, 23 LEd2d 647 (1969)............. . @ City of Phoenix v. canbe, 399 U.S. 204 (1970)... - Flast v. Cohen, 392 U.S. 88, 88.S.Ct. 1942, 20 L,Ed.2d 947 [cae ee 20 Florida Lime &. Avocado Growers‘ v. Jacobsen, * 362 U.S. 78, 80 S.Ct. 568, ee nes 3 Georgia Socialist Workers Party v. Fortsen, . _ 315 F.Supp. 1035 (1970) ..................00.. . ~ 20 Harper v. Virginia State Board of Elections, 383 U.S. 663, vaalicaun 1079, 16 L.Ed.24 169. (1966) vse se. sereeere bedi teeet ences 13 Jenness v. Fortson, 89 L.W. 4791 (1970) ....... eB ixe es 7,10 Jenness v. Little, 806 F.Supp. 925 (1969).. eke Leseeeetes 720 Lindsley-v. Natural Carbonic Ges €o., 220 US. 61, ° 81 S.Ct. 337, Nese apenas 24 Kramer v. Free School District, 895 U.S. . €21 (19 25) a AE Ray fol Ae re 12 | McDonald v. Board of Election Commissioners of rey pda aaa oda eGoweny, Maryland, 366 U.S. 420, 81 S. Ct. 1101, - Yick Wo v. Hopicina’ 118 US. 356, 30 L.Ed. 220 (1886). 14 Zemel v. Rusk, 281 U.S. 1, 85 S.Ct. 1271, 14 | L.Ed2d 179 (1965)... 20... on social thea pen et peng tue S85, Onegin ¥ Mitchell, 400 U.S. 112, 91 S.Ct, 260, ; 27 LEd2d 272 (1970).......:....... ss. 24, 25, 26° Pate v. El Paso tele. 324 F.Supp. 935 (Ww. D: Tex. 1970) aff'd 400 U.S. 806, 91 8.Ct. 55, 27 L.Ed.2d 88.(1970).:...........005-. alder 24 Reynolds v. Sims, 977 US. 588, 84 S.Ct, 1862, - | "12 LeHd2d B06 (1964) 22D 24 Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, | 88 LEA. 987 (1944) 0 Sec aus 7,9. Sniedin ¥. Hughes, 821 U.S. 1, 88 L.Ed. 401... 24,258,927 ‘United States v: Georgi Pb. Secv. Comm.,871-°" . U.S. 285, 83 S.Ct. 397, 9 L.Ed.2d 317 (1963) ...... 2 " Walters v. City of St. Louis, 347 U.S. 231, 74 - ; ‘S.Ct. 505, 98 L.Ed. 660 (1954)... 24 Williams v. Rhodes, 393 U.S. 23, 89 S.Ct: 5, / * 7 2i L.Ed.2d 24 (1968) oes eeeteee a. Ane! * Williamson v. Lise Optical of Oklahoma, 348 U.S. . 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955)... 24 “CONSTITUTION-OF TEXAS: ©] Articlé XVI, Section 2....2.....00...00% a0... 8 * -_ CX : TEXAS ELECTION CODE: 4 A ee _! a Article I3.07a eee geese ek ane es ees 5 wees. 2 6t seq. Article 18.08 ...... Ble Sanwa p anaes 1, Bebseq Article 18.08 0.0... lee. verses Bet seq. | Article 1395 occ cece ececeee. .2ebseq, | © Article 18.16 2.2.0.2... Fon ew cooccccee Bet seq Article 18.50 ........... Vidsehabeeetersedaatees! 10° _ LAW REVIEWS: °° : Ae! eer 83 Harvard Law Review 95......... eee te 11 eee | @ NO. 1606 SUPREME COURT OF THE UNITED STATES. a _ OCTOBER TERM, 1970 “MARTIN. DIES, JR., ET AL, _ | ‘Appellants VB. - , VAN PHILLIP CARTER ET AL. A ro On Appeal from the United States District Court for ‘She os District of —— Dallas Division * BRIEF FOR APPELLANTS OPINION BELOW ee The opinions of the Three J udge Court appear in the Single Appendix at pages 145 and 154. The opin- ions are reported at 321 F.Supp. 1358 (1970). This case - _ involves filing fées for political party.primaries. The- Three J udge Court. held that to use a filing fee as a _ revenue raising device or as an absolute requirement for access to the ballot is uncdhstitutional. JURISDICTION The Appellants invoke the jurisdiction muteeced upon this Court by 28 U.S.C. §1253 to review on direct appeal an order: granting a permanent injunction in a civil action required by Act of Congress to be heard — and a by a three-judge district court. oe LC , . — “The ‘wicaent was entered on the J day of Deoum- -! ber, 1970 (A: 160). Since it was a final adjudication on - the merits of the issues presented, fhe Appellants filed Notice of Appeal in the district court on the 19th day. of February, 1971 (Ar 162), which was within the60-day period prescribed by 28 U.S.C. §2101(b)y, and in com- pliance with Rule 11(3) of this Court. On the 21st day "of April, 1971, the Appellants complied with the re- quirements of Rule 13 of this Court.. Thereafter, this - Court by its Order of June 7, .1971, noted probable jurisdiction. The foregoing clearly demonstrates the timeliness of the procedural steps necessary to invoke - _ the jurisdiction of this Court. ° | = The Appellees sought in the court below to have the Appellants (certain state officials charged with the re- sponsibility of administering the election laws of the State of Texas and certain county and statewide offi- cials of the Democratic Party in Texas) enjoined from the enforcement of Articles 13.07a, 13.08, 13.08a, 13.15, and 13.16 of the Texas Election Code. In addition, the. Appellees sought to have the-court below declare the _ afoftsaid provisions of the Texas Election Code uncon- stitutional. The court below granted the relief sought by the Appellees by declaring Articles 13.07a, 13.08, 13.08a, 13.15, and 13.16 of the Texas Election Code inbonatitytional, and further decreed that the State of. . Texas, throughsits political parties, was enjoined from the enforcement of Articles 13.07a, 13.08, 13.08a, 13.15, and 13.16-of the Texas Election Code. _ t . _ The jurisdiction of this Court to review the: judg- - ment of the court below is conferred by 28 U.S.C. §1253. Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d ,947 (1968) ; Zemel v. Rush, 381 US. 1, 85 S.Ct, 1271, 14 L.Ed.2d 179 (1965) ; United. States v. Georgia Pub. Sérv. Comm., 371 U.S. 285, 83 S.Ct. 397, 9 L.Ed.2d 317 —_ ee | \ a a _ (1963) ; Florida Lime & Avocado Growers vB acobsen, | -362 U.S. 2B, 80 S.Ct..568, 4 L.Ed.2d 568 (1960). 7 - STATUTES INVOLVED. * The Legislature of the State of Texas, acting A ' suant to the mandate of Section 2 of Article XVI of - the Constitution of Texas to provide for laws regulat- ing elections within the’ State of Texas, has enacted various statutes dealing with the election process with- _in this State. The statutes under attack in this proceed- ing. constitute a portion of such election laws of the State of Texas and are statewide in appligation. The enactments held ‘invalid by the court below are sec- . tions 13.07a, 13.08, 13.08a; 13.15, and 13.16..The full text of these statutes appear in Appendix C of Appel- lant’s Jurisdictional Statement.-The relevant portions of these statutes are ® quioted here for the court ’s con- venience: _ “Aré. 13. 07a. Deposit to accompany application for place on ballot: 7 (1) Every candidate for publié office who is sub ___ject to assessment by the county executive « com- “ - mittee for a portion of the expenses of holding the primary élection, except candidates for. the + Legislature and for the State Board of Educa- tion, shall pay to the county chairman, at the time of filing his application for a place on the ballot, a deposit of fifty dollars. , \, ‘*(2) After the county executive committee makes ‘the assessments provided for in Section 186-0f ~~~ this code, it shall refund to each candidate within thirty days thereafter the amount of the payment ‘ in excess of the assessmént against the candidate if the deposit exceeds the assessnient. If the de- posit does not exceed the assessment, the balance. due on the. assessment shall be paid as peor P _ — 5? 4 ‘in Séction 1 186. Amended by Acts 1967, 60th le. - : -‘p. 1909, ch. 723, 6 41, eff. Aug, 28, 1967. “Art. 13.08. Expenses of primary. : . “(1) Prior to the assessment of the candidates, - the county committee shall carefully estimate the cost of printing the official ballots, renting polling : places where ‘same may be found necessary, _ viding and distributing all necessary pool bo ks, , blank. stationery and voting booths required, » COM~ d all _ pensation. of election officers atid clerks,. and other necessary expenses, of holding the general primary and second primary in such county on the second M®nd&y -in February prece each primary, shall apportion such gost in and ding such’ manner as in theiy judgment is just and equitable among the various candidates for nomination for district, county, - precinct offices only as here- in defined, . In making the assessment upon any candidate the soniniithes shall give due’ sideration to the importance, emolument, con-: and - term. of office for which the nomination is to be made. . . the difference between the amount of the assesamant and the amount of ‘the deposit - which accompanied the candidate’s-application — -must be paid to the chairman on or before the fourth Monday in February; and no person’s ‘name shall be placed on the ballot unless he pays . the assessment within the prescribed time.’’ SUMMARY OF. ARGUMENT - . The three judge court held that the compeljing State. _interest test-applied te-primary filing fees. The Appel- lants contend that the rational relation test applies. — The threé judge court -held that a filing fee violates + the first amendment and - process and equal protec- “tion causes 0 of the For nth Amendment when used as a revenue collecting device or when m 7 absolute qualification in order for a candidate os | . * oo it is e an get ee ° his name on the ballot. Thé-Appellants contend that * both of these holdings are erroneous. (STATEMENT | This case had its initial origin in three separate sits ’~ (A. 49) which were consolidated by the Court ‘below (A. 49). Some of the Appellees were candidates for - election, and other Appellees were individuals who de- — - gired to vote for those Appellees seeking to run for — election to public office. Please note that Uris is a party 7 primary case and not a General Election case, The Appellees brought this action on behalf of them- ' _ selves and the class of all other persons similarly sit- | _ uated requesting that Appellants be enjoined and ‘re- strained from enforcing the provisions of Articles - 13.07a, 13.08, 13.08a, 13.15, and 13.16 of the Texas Elec- tion Code whieh require that candidates for party nom- ination to offices i in the general election,must pay filing fees as set out in the. challenged sections ‘of the Texas “Election Code in order to have their names placed on . the official ballot in the Democratic’ primary election. _ As a basis for such relief, the Appellees alleged that, the requirement for the pafment of such. filing fees violates the due process and equal protection ‘clauses > of the Fourteenth Amendment of the United States —— Some of the'Appellees are candidates for certain local and statewide offices, who al- leged that they could not afford to pay the filing: fee required to have their name placed on the ballot in the Democratic Party primary election. The remaining Appellees are: Intervenors who desire to vote for the . Appellees who ‘were candidates for public office. - Specifically, the Appellees have alleged that the filing 7 fee assessments are unreasonably high arid without any — i reasonable : relation to any legitimate legislative pur- | .* Whe vost of primary elections in Texas - all coun- ties must be paid out of asséssments made against the candidates who seek nomination to precinct, county or _ district public office in such election (Stipulation of _y Fact No. 15, A. 112). In accordance with the provisions __of Article 1808 of the Texas Election Code the county executive committee of the Political party apportions,-—"- the cost, by assessment, of primary .elections among: ~. the various ‘candidates. | Bieta of Fact No. 6 / A1M0) _ | a a ae | - __—Phase" Appellees who were candidates bie various ~~" elective offices in the primary elections did not make ~ thie required paynfent of their assessment or filing fees ) and therefore their names would not, and could not, pursuant to the provisions. of the challenged statutes, "appear upon the primary election ballot (Stipulations of Fact Nos. 10, 11, 13, 14, 21, 22, 23(d) (e), 31; 35, 36, A. 109), However the court below by an order dated the | 2 day of May, 1970, relieved the Appellees from the a, uirement of paying such assessments or filing feds — | in 105). The filing fees of the Appellee Pate were $1,- 424.60 (for the office of County. Commissioner ), for the Appellee the sum of $1,000.00 (for office of Com- caieicmar the General Land Office), and for the Ap- . pellee Wischkaemper the’sum of $6,300.00 (for the .. @ffice.of County Judgé). See Stipulations of Fact Nos. | a2 _ 23(d), and 8, A.109) , a he procedir ied ig arciving atthe ameamunnt i a set out in Art. 13.08(1): | “(7). Prior to the assessment of the | idates, : the county committee shall carefully te the = a renting pol . mele: "te ee aie where semesters may pe found necessary, G _ pro and distributing poll | 7 Cooke: nk stationery and. adie tothe: : quired, va maees +t “election . ction voeers en | - glerks, P necessary. expenses o | | ing the eee and, second as sed in oun y : a . “The court below, in tts opinion and. jvdguseht, has* . es the. challenged provisions of the Texas Elec- tion Code unconstitutional and has. enjoined their en- - forcement.by the Appellants. 3 IN TRODUCTION | This Court has held that political party vateakiteg: are State action. Smith v. Allwright, 321 US. 649, 64 §.Ct. 757, 88 L.Ed. 987: (1944). We feel bound by this | decision in the Smith case, and therefore, in in portion of this brief we shall treat the politi- — arty primaries as though they: were exactly the- e thing as the general eleetion. We do feel that a ~ valid distinction exists — a os election: -and-a general elgction. We would. respectfully direct this Court’ . attention | ' to its recent opinion of. Jenness v. Fartson, No; 5714-- October term, 1970, 39 LW 4791. In this case the court . there is surely an n texportent state interest § in ee? ring some preliminary showing of a signifi- _ cant modicum of support before printing the name of a political organization and its candidates on’ the ballot—the interest, if no other, in avoiding confusion, deception, and even frustration of the democratic. process at the general election.”’ ‘Thus, this Court found that the ‘State of Georgia had _ gome way to control their — ballot, other than — through a ons: fee. a oe aT a Exhibit A of this ‘brief aie: forth the full text of . _ House Bill No. 5 which was passed recently by the. Legislature of the State of Texas. The Court will note ‘that this Bill is to become. effective only upon the con- - dition that, before January 1, 1972: (1) ‘the Supreme Court of" the United. States> does ‘not dispose of the appeal filed in that court — from the judgment of the United: States District Court for the Northern District of Texas, Dallas - | Division, in Civil Action No. CA 3-3635-C, styled - Van Phillip Carter vs. Martin Dies, Jr., et al, by action which becomes final before J january 1, 1972; or © |e” @) ‘the Supreme Court of the United States af. firms or refuses to. review the judgment of the ' dsitrict court i in the aforesaid case, or by other ac- © _ tion taken upon an appéal of that case the Supremg 2 Court rules that either of the following sections 0 the Texas Election Code as they exist'before the amendments made by this Act violates the Con- stitution of the Umted States: Sections 185a, 186, _ 186a, 193, and, 194,” “(Emphasis added)’: | This legislation. shows how the State of Texas i is pos tempting to deal with the problem of political party primaries, if this Court holds that the statutes in ques- ° tion are unconstitutional. If this Bill becomes effective,. because of the ruling of this Court, we would like ‘to ‘point out one possibility which we feel’ is ee much’ : -of a probability. , , | _. The Bill provides that if one is nila to pay the e | filing fee, that he can file a pauper’s affidavit and. have : his namé placed on the political party primary ballot.- - We can almost promise this Court that there, will be some eonserted effort by some group, regardless of . political persuasion of the particular group, that will “These are the statutes in issue in the case at bar. f . ~ : — = - | | j | | : } ee - flood the ballot. The State of Texas will ie tenes: ‘to immediately call its Eégislature into session and try to _ - devise andther..way to regulate the. primary ballot.: . Aside from the problém of how you finance primaries, filing ‘fees serve to regulate: the ballot in primary elec- ’ tions just as they do in general elections. In General « ~~ Elections the States have an alternative method of regulating the ballot (See J emmess). The only alterpa- tive method which we can invision .to regulate a pri- mary ballot is to also‘require a petition jn order to. get on, the primary ballot. Of course, this Court can see — *’ that this defeats the whole’ purpose of having primaries. . _ The alternative to a filing feé asa regulatory measure, | is either to have some sort. of primary to see who can. . ‘ _ get on the primary ballot or- require a. petition. We : recognize the problems offpvealth and join with those . who believe that a man’s wealth has little to do with his qualifications to hold public office. However,-the . solution to. regulating the number of people who get — ‘on a primary ballot is neither an. ea8y one or capable ; » of cléar and precise judicial managable standards.. One solution tothe dilemma into which this Court is — leading political parties, if they hold that filing’ fees cannot be used to regulate primary ballots, wopild be. to re-examine the broad sweeping language of Smith «— v. Allwright, supra. The object of the. laws. in Smith... .- _ was to keep an entire class of voters out of the voting - > book. This, Court properly held that: the white pri- ‘ maries violated the Equal Protection clause through invidious discrimination. The vehicle that this Court- used to invalidate the challenged laws was a determina- _. tive that a political party primary was State action. ~ We ask this Court to reconsider the problem. of wheth- er or not everything involved in a primary election © must.be State action and. must be run exactly the same - way as a General Election. A poor man, if he has 4 b, cae es ‘wee cms Cuetie * “ oe : . s ‘.”. = \5 at «> \, s o~ + _ ; 8 ‘ . . . e *@ 4 . . . . ~N * “\ . ; . ; x > See Texas Election Code, sections 13.50 et seq. and compare J enness v. Kortson, supra. . We feel bound by this Court’s decision ; in: Smith, and | | will therefore, treat this appeal as though the primary was exactly the same as the general election. Because there is an obvious difference in a primary and the general election, we feel that this Court, after it thor- _. * oughly examines, the issues ‘at bar, will desire to re- . | , 2 consider the ie broad, sweeping language of Smith. . ; . €h. ARGUMENT — soo The sence issue in a filing fee case involving a pri- = election ‘is whether or not the burden of proof is State to show a compelling State interest in ithe to sustain: its laws,’ or whether the burden of | | proof is on the Appellees to prove that the State laws do not bear a rational relation. to the ends sought to. be. accomplished and that the laws-cause invidious dis- _ erimination. The reasoning ofthe three judge court. The first step i in the reasoning of the court below was: “Since the rights of the intervenors as voters will be determinative of ‘the. constitutionality. of the . laws here attacked, we deem it unnecessary to dis- cuss the rights of the candidates.’’ Shifting the thrust of the whole case from:e one involy- ing- candidates and, filing fees to one involving rights of voters is the point at which the court first committed error. The Court decided that the voters in the case at — 10— \ ‘modicum of support, has an alternate route to having .> "his name on the ballot and to ultimate election. He does not have to run in-a party primary.,The laws of the ‘State of Texas for getting on the general ballot are much more lenient than those of the State of Georgia. \ €. bar were Being denied the right to vote, that the ght _ - to choose one’s candidate involved the First Amend- ment, and that the compelling State interest test ap-- plied. The Court cited Williams v. Rhodes, 398 U.S. 23, 89 S. Ct..5 (1968). Judge Thornberry, in his con- . curring opinion. thought thatthe. Williams test was _ involved and that‘only a compelling State interest can - justify a State’s limiting First Amendment freedoms. — ..‘ This interpretation of the Williams case finds sup . port in 83 Harvard Law Review 95: _... “The Williams Court also charvacterined a- pelt, '* interest ‘as. fundamental under it’ equal protection analysis, and.in doing so marked another striking departure from past doctrine. In past decisions, the fundamental interest j in the franchise has been invoked when one’s vote was ‘not counted, when ; free aecess to the ballot box was impaired, or when . one’s véte was not given equal. weight ‘vis-a-vis _. other votes in the political unit. The-voting inter- est protected in Williams was quite ‘different. It "was an interest in casting a ballot for the parttcu- lar candidate that. one prefers above ‘all: others. ’ The Court seems to have interpreted ‘the right to. cast ... [a] vote effectively’ to protect a full range of self-expression, to extend not only to the casting and counting of ballots but also to what a voter ‘may put on his ballot.’’.(emphasis supplied) . .« ‘Mr. Chief Justice Warren recognized the very prob- ‘lem which is involved in this case in McDonald v. Board : of Election Commissioners of eee 394 U. S. 802, 806, 89 §. Ct. 1404; 1407 (1969) : ‘Before confronting forces -challenge. to Thi. nois’ absentee provisions, we must determine. in- itially how stringent a standard to use in: evaluat- ing the classifications made thereunder and wheth- er .distinctions must be: justified by oe State interest ;”’ , re a” ae ere The Appellants -submit that’ the three ‘judge court: * -- did not properly understand the distinction between the line of cases which McDonald, Williams, and Jen- - Me88 ‘represent on the one hand, from the line of cases represented by Kramer v. Union Free School District, -. 395 US. 621,.89 S. Ct. 1886 (1969) ; Cipirano v. City of ' _Howma, 395: US. 701, 89 S. Ct. 1897..(1969) ; Phoenix v. Kolodziejski,. 399. U. S. 204, 90 S. Ct. 1990 (1970); _ Carrington v. Rash, 380 US. 89, 85 8S. " 775, 13 L. Ed. 2d 675 (1965). - Mr. Chief Justice Warren pointed out the distine- tion between these two lines of ‘cases in Kramer. In footnote 6 found on. page 1889 of the Supreme Court _ Reporter edition :. “This case presents an issue different froui the one we faced in McDonald v. Board of Election © - Comm’rs of Chicago, 394 U.S. 802, 89 S. Ct. 1404, . 22 L. Ed. 2d 739 (1969). The present, appeal in- volves an absolute denial of the franchise. In Mc- Donald, on the other hand, we were ‘reviewing a statute which made casting a ballot easier for some - who were unable to come to the polls. As we noted, there was no evidence that the pre absolutely , prohibited any one from exercising the franchise ; at issue was not a claimed right to vote but a claimed right to Crag Ss ballot. I d., at 807-808, . 89 S. Ct., at 1: “In Kramer, Cuirvvagt Cipriano, Kolodsiejski, the laws in question were fencing out voters entirely from the voting booth. Otherwise qualified voters were denied the right to vote entirely because of a particular classification into which -they fit. They ceuld not go to the polls at all to vote for anyone in _—. particular. election in question. In McDonald, the issue intetend an extension of the | -_ right to vote. That is, your basic. ae: is to appear 3 — is .at the polls in person and vote, and an an absentee _ ballot extends that right. Any extension of that right is a legitimate regulation bythe State and should be tested under the rational relation test. . | In the case at bar, no voter is fenced out of the | voting booth by the filing fee fequirement. The filing fee simply limits the person for whom the voter may — cast his:ballot. This is exactly the same problem with © which the Court was confronted in Williams. The Ohio ‘laws: did not prohibit any voter from voting. The — Ohio law simply made it impossible for another po- ' litical party to get organized in the state of Ohio. Mr. . Justice Black held that “‘the totality of the Ohio re- strictive laws taken as a whole impose 4 burden on voting and associational rights which we hold is an invidious discrimination in viclation of the Kqual Pro- . tection Clause. » In Jenness, Mr. Justice Stewart found that the inves . of the State of Georgia did‘ not create an invidious discrimination and bore: a rational —— to a legiti- mate state end. a It is true that language’ can be foiind in both Wil- liams and Jenness which mention the words compelling state interest and important state interest. This court will recall. tliat \traditionally First Amendnient prob- lems -have been treated under the compelling state in- terest test, while equal protection problems have been treated under the rational relation test. Please see the . | dissenting and concurring opinions in Williams, and Harper v. Virginia State Board of Elections, 383 U.S. _ 663, 86 S.Ct. 79, 16 L.d.2d 169 (1966). ‘There is another school of thought which says that any time voters rights problems arise, that the laws are subject to close and careful serutiny, Kramer, The ee ace 2) i: Hiaterd Law Review: staff, supra, at page 90, thought “that the Williams court expanded a developing doc-_ trine by including a First Amendment interest in the | pantheon of fundamental = for el Sain of equal protection os. + Any time that whe rights are dnpolved,. the court can create arguments that talk about political expres- sion and reach First Amendment rights. One can say that. the vote is the ultimate of political expression, ‘and that to. limit the choice” ‘of a voter places a limita- tion on his free speech rights. Therefore, anything. which limits a voter’s choice of candidates, such aga fee, or a petition in order to get on the ballot @ enness) is a first amendment problem. : ‘We reject this analysis. We think that this case is - about fees and political party primaries, and. whether two men: -one rich and one poor, are being treatéd. equally, or whether there is- invidious discrimination. To us that is an equal protection problem and. the overlap between equal protection and First Amend-. ment righ s is slight. We submit that voter’s rights do — constitu... special category of equal pretection prob- lems. See the.reasoning found in Yick Wo v. Hopkins, 118 US. 356, 30 L.Ed. 220 (1886). - This Court in i fier correctly pointed out the ro tinction which this ‘court should use in determining whether or not a , particular limitation is a voting rights case or @ case where the state is exercising legitimate interests in regulating the ballot. The court should look _ at the law and determine whether or not it_keeps any voter from the voting booth. Jf it does, then funda- mental voting rights are at stake and the law i is sub- ject: to close’ and careful’ scrutiny and a compelling on, | eee state interest must bewibdvee..” If the law under exam-<_ _, tion does not prohibit anybody from voting, then the ‘rational relation test should be applied by the court. Access fo a primary ballot ‘by candidates is an equal | protection problem. The Appellees are wanting to as- - - gociate with a.certain-particular group, and the issue is whether or not. they are being a of -equal protection of the law. I. ISSUE GOVERNED BY THE RATIONAL RE. ” 1 ' LATION: TEST. : A review of the cases since Kramer reveal that once any court decides that the state has the burden of es- -tablishing a compelling state interest,that the ball _ game is really already over. Therefore” we are going to discuss in detail the problem of whether or not a filing fee in a political party primary bears a rational relation to a legitimate state end. Howeyer, we submit that for the reasons stated in the remainder of this _ brief, that if the State of Texas must meet the-burden of establishing that a compelling state interest exists, ° then there do exist such interests and this court should. | reverse the Three Judge Court. We would point: out . _ to this court that the record contains a large number of stipulations. There are ample stipulations in this record for the court to decide this case on the merits, _ regardless of who has the burden of .proof.. This case should not be remanded for further development of facts. II. “APPLICATION OF THE RATIONAL RELA- TION TEST. Because of the action of the Tegisiskare of the State of Texas in enacting the’ conditional amendments to _—————"J "For example, should a convicted félon be denied the right to vote. ; oS _ —16— - ‘ x. ea \ - — — the Texas Election Code, this. Court i is presented with . - .a two-fold problem: deciding the validity of the second statute, if the Court finds that the first statute creates - an invidious discrimination which keeps the statute from bearing a rational relation to. a legitimate state interest. ‘The three judge. court has held that z a filing fee may | ‘not be used asa Trevenue raising device. We would like _. to point out that the filing fee is not used in Texas as * revenue Yr device, in the traditional sense that’ “revenue aising’’ iscused. When Texas had a poll tax, . this was used as a reVenue raising device. The. money . which was collected from the sale of poll taxes went ° ' into the permanent school fund té ‘help finance the | _ fon as saying that it is unlawful to use a filing fee. as ne education ef the children of the. State of Texas. No ©. excess .money is raised by the filing fees. All of ‘the. __Money that it\does not take to run the political party primaries is refunded-to the candidates, Article 13.08. ‘We can more accurately describe the filing fée, as it is © used in the State of Texas, as a method: to finarice a primary election, rather than a revenue raising de- . : vice. We should therefore réad the lower court’s opin- om method to finance a primary election. sg We see four methods that political parties can use to finance their primaries. First, they may use filing fees and the three judge court has struck this down.. Secondly, they may hold no primary at all and nom- - | inate by convention. .This eliminates the cost almost * entirely. Third, we may require the States to finance ' primary elections. This is done in a number of States. Fourth, we may require that the primaries be financed through voluntary: contributions. We feel that this Court can see that the alternatives left open to political parties who desire to hold primary elections is relevant —16— ; 7 - ooo a an , . to the qyestion of whether or not a filing fee as a _ financing | device bears a rational relation to a legiti-7 - - mate State purpose,. Consequently, we would like to explore with the-Court just what happens when you gnust finanee a primary election. through either alter- . natives number three or féur listed above. > Let us first examine the problems which arise when: the State. finances the primary elections. First, since. the State.is going have to finance all primary elec- tions, this Court will have to examine (similar to the ‘problems that arose in-Williams-and Jenness) the laws. | of all ify-Ststes and woo if their defen of wher 2 -. *politieal body’’ becomes ‘political party” so as to become entitled to have the State finance their pri- - mary. Secondly, if a third. party candidate gets the requisite number of votes for governor to be a political party in the next election, ntust the State, besides fi- nancing a primary for governor in the next election, also finance a primary for each and every public office in each and every precinct within the State? Thirdly, the review of many well reasoned and knowledgable . - studies reveal that the stability of the governments of — © the English speaking peoples of this world is due pri- marily to the fact that they have essentially two party _ systems. This Court knows better than-the authors of _ this brief that the ties that bind the Democratic Party - and the Republican Party together are much weaker _ today than they were twenty years,ago. If the State | agrees to finaiice everybody at a primary election, we submit that this probably will cause a prolifleratiop of © political parties: and contribute to the breakdown. of ‘our two party system. It is quite » different thing to say that the ease with which a party may have access - to the general ballot, applies equally -to the State fi- nancing. saparty primary. Mr. Justice oat in Wil- ; —17— ~ ney a iol Pe. Me . liams, rejected as “theoretically imaginable’ the pro- _ liferation of political parties. In Williams the problem ‘was the totality of laws to get on the ballot. No one was agreeing to finance anyone. Ifyou start. having free money available, the problem may be different. . The Appellants submit that to do away with the candidate’s having to pay these filing fees, which pay for the primary elections, will actually place another burden upon the voter which is not presently there~ If the‘ costs of conducting the primary elections are removed from those candidates who are seeking po-- . _ litical offices and which do so under the. banners of a _ particular political party, then the alternative which © the court below has forced upon the State of Texas is that they must be assumed by State and local govern- mental bodies. Today these governmental bodies are — being increasingly faced with the almost unsurmount- able problems of the rising demands for the use of the tax dollar. The court below i in its decision has added _ yet another burden to the staggering costs of State and local government—the costs of financing the primary elections of all political parties. Needless to say, the taxpayer will ultimately have this additional cost added - © to his already increasngly staggering burden. The court . below has apparently. treated the taxpayer and the voter as two separate and distinct bodies. This, how- ever, is to create a fantasy, because each and every voter is also either directly or indirectly a taxpayer.. - Actually the decision of the court below. has merely transferred the costs of primary elections from the candidates to the voters. The court below has based its decision essentially on the assumption that the pres- ‘ent filing system in Texas as to primary elections places _an undue burden on the voter. The Appellants submit \ that the decision of the court below, in now placing the | 18 costs of the primary elections upon the voter, places a far heavier burden on the voter than existed prior to the court’s decision. In addition, the court’s deci- sion has virtually insured a large list of candidates in ‘every primary election with additional run-off elections then becoming virtually certain with increased election costs. The court below has not lessened the burden up- on the voter by its decision—it has merely increased tlie voter’s already staggering tax burden. Perhaps it .- _ might be well at this time for this Court.to also con- ~ sider the rights of the taxpayers of this country as well-as their duties to support the costs of our govern- - Ment. How well fies the siternative of having party pri- maries financed by voluntary contributions fare? We: would point out to the Court that there is no guarantee that sufficient voluntary. -contributions could be raised | to conduct primaries. If this were to happen, then the : logical response which should be made to this situation |. would be that since the parties do not have enough sup- port to finance a party primary, the parties just do not need to hold primaries. We would. ask this Court . whether or not: that argument sounds familiar. ‘Has ap, the argument not been advanced many times that if a candidate does not have sufficient support to raise the - filing fee, that he does not need to be a candidate? That is exactly the same type of reasoning that you would be applying to political party primaries if they-. - ‘ could not raise sufficient private support to finance their primaries. It seems to us that the requirement ‘ that primaries be privately financed’ présents a circular | solution to the problem, whick is no solution at all. That is, if the outlawing of filing fees has the effect of eliminating the: primary’ altogether, it is not. really a solution to the poor persons’ or = rieh persons’ prob- -. lem. .’ i (th —_ 19 ee Lady . apply to the: primary ballot ?”’ cg From the above. ie nerrs one thing can n be deny: seen: To absolutely outlaw all filing fees as a financing = 7 device for party primaries is hot a workable solution. - We submit that filing fees are’ the. ‘dest solution to: financing party primaries. — ‘ : This concludes our discussion of the first ot several.” interests, which the State must attempt to. balance in enacting the filing fees as.an absolute requirement. to getting on the ballot. We have seen that as ‘far as fi- _ nancing the primaries, there certainly are problems _ with any alternatives to ‘timinating. the filing — as a financing device.:: A second interest which i is involved in 1 the State leg- - islation under ‘consideration here is whether or not the. filing fee can be and should be made. an absolute re- quirement in order to get on the primary ballot and. - be the sole method through which the candidate’s name — cari appear. The case of Jenness v, Little, 306 F. Supp. 925 (1969), held that “to prohibit candidates from . - getting their names on the ballot solely because they - ad , cannot post a certain amount of money is illégal and. - * unconstitutional.’’ To the same effect is Georgia So- _ etalist Workers Party ‘v. .Fortsen, 315 F, Supp. 1035 (1970).- Both, of these cases involve general elections as opposed to primary elections. As we have pointed _ out before, the state of Georgia had another way to - regulate the size of their general ballot. (Jenmess) The - thrust of our argument is fy the same rationale e submit that it does not. The fee can be used. by political parties to regulate . . the size of their primary. The only otfier method that they can use to regulate the size of the primary ‘is a ' . petition. As we have stated before, this forces a politi- ea] party to have ‘a primary tg see ‘who can get on the primary ballot. Obviously, apetition is 3 not. a primary,-, — b/ —= \ “4 ° . SAO. + hel oli point -is that you are making polities! sii substitute an onerous requirement of a petition, for . : the method ‘that they previously used to control the . size of their ballot. These petitions will breed litiga- ‘ tion as to whether or not the right people signed them and, ‘whether’ or not they were qualified to sign the peti- __ tion. ‘The interests to be viewed ‘and weigheti and bal- — - anced are those of an indigent who cannot afford the filing fee, as opposed to the addéd work and potential litigation. that is. created’ by the requirements of a\pe- _ tition. We would respectfully point out to this Court. ' that we understand and agree with and affirm the rax ~~ tionale of Mr. Justice Douglas in Harper: “Voter qual- =. _. ifieations haye no relation to wealth or fo_paying or not | ° | ' paying: this (poll) or any other tax.’”? However, ' just: ‘because, a man does not have a filing fee to get on the ~ ; political party’s primary ballot, does not mean’ that he ‘is foreclosed from the ballot. The facts are that this _/ court-has recently held int Jenness-that a 5% petition — a réquirement is not unconstitutional... The State of Tet- eo as requires only 1%. The man who cannot afford'the . filing fee of the Democratic Primary, is not foreclosed — from the ballot; He has other a a can get on the General Ballot. . “a . 7 Iti is:no argument to respond. that the — man ought to be able to get on the Democratic Party’s ballot, — - -rather than having. to wait until the general ballot because the Democratic Party nomiriation is tante- mount to election. If the, Democratic nomination is tantemount’ to election,’ this means that everybody is going to vote in.the Demoératic Primary. Therefore, if you would be ablé to. convince them in the Demo- cratic Primary, you ought to be able to. convince them .- - in November. The will notice that we are not . | a oor that the man does riot t have the money for a filing fee is tantemount to defeat because * * of the costs of running an election. We.do not consider this a relevant question as far as access to the ballot.is — concerned. We think that as long as ‘a poor man hasa . reasonable opportunity to get on the ballot in Novem- ber, that the fact that he cannot get on the party’s primary ballot, because he cannot pay the filing fee, does not invidiously discriminate against the poor man. The object of our constitution ‘is to make thehballot equally accessible to all people. The right to vote is deemed fundamental. But how many times does a man have a night to get on a ballot? The question really revolves itself right back into the. Smith v. Allwright. . Is the primary election exactly the same thing as the general election? The Court will. note that there is a. _ significant difference between our case and Smith v. ' Allwright. In Smith, those persons against whom the law discriminated were kept away from voting entirely. In the ease at Bar, those against whom the law dis- | ‘eriminates can vote, they just cannot get their own - _ candidate on the ballot. We submit that the distinction — - which Judge Warren drew in Kramer, between Kra- mer & McDonald, applies in this case. When you con- ', sider that a political party has a legitimate interest in financing its primary, in controlling the number of yeople on the ballot so to avoid voter confusion; when | ou consider the alternatives to using the filing fee to | accomplish the previous two ends, and- when you con- sider that the’ aggrieved party has another avenue open ' to him to espouse his cause; then the poor man is not 7 invidiously discriminated against by being required, as an absolute’ requirement to get on a party primary © ballot, to pay a filing fee. __ If. ENACTMENT OF HOUSE BILL 5. - \ We would like to examine the problem of whether or ,, — 22 — - not - 5 solved the constitutional problem, in the — event tHis Court should decide that absolute require- ments of a filing fee constitutes an invidious discrim- ination. Texas has not abandoned the filing fee asa finaricing device for their political party primary. They have simply substituted a pauper’s oath to solve the poor man’s problem. We assume that the Appellees in ~ this case will argue that this statutory scheme also involves invidious discrimination, and that either the State or private donations should finance the primary election. They will probably. argue that to require a poor man-to file a :pauper’s affidavit creates a stigma and amounts to certain defeat in the election, because of the attitude that th veryday voter willrhave to- wards the ma ‘that h ed a pauper’s oath. We would submit to this court that that argument does not hold . water. If one follows that argument, then all filing fees.are per se invidious discrimination. There will al- ways exist some one who can afford no fee at all. We would point out to this court that there is also a stigma involved in being rich. It is true that there would probably be more votes lost by a poor man be-. cause he filed a pauper’s oath than bya rich man be- cause he was rich. However, there are people that we — all know personally who refuse to vote for certain can- didates because of the amount of wealth which they possess at the time they present themselves:as candi- — dates for public office. They consider the wealth just © as much stigma as some people consider. it a stigma to he a pauper. This court should ‘not let the ‘degree of favor that the voters may hold for wealth or poverty be a basis for declaring all filing fees a per se invid- ious discrimination. ~~ ‘ - We submit that the state of Texas aa a reasonable _ solution that does not involve invidious discrimination —2B— a a : ‘. . ‘in BB 5. If there: ss ss Saeidions discrimination in having a filing fee be an absolute requirement for ac- . cess to the ballot, then the pauper’s oath solves the problem and erases the invidious - ‘discrimination. ‘There is nothing i in the record before this Court: to : show that the challenged laws made it impossible for Appellees ‘to vote. Certain of the Appellees may not have had the opportunity to vote for candidates they might have liked to have seen on the ballot, but this differs drastically from an absolute denial of voting. The primaries simply are not the general elections. The Courtshould either reconsider Smith, or conclude, as we do, that ‘under all the circumstances there is no invidious discrimination. As long as there is an alter- native access to the ballot for the poor man, 7 no invidi- ous diserimination exists. ' The prosoription of the Equal Protection Clause does not go beyond the invidious discrimination, Wil- ilamson v. Lee Optical of Oklahoma, 348 U.S. 483, 75 - S.Ct. 461, 99 L.Ed. 563, 573 (1955), for ‘‘. . . mere clas- _Sification; as this Court has oftén said, does not of it- _ self deprive a group of equal protection.”’ Cagington . v. Rash, 380 U.S. 89, 92, 85 S.Ct. 775, 13 L.Ed.2d 675, 678 (1965) ; Oregon v, Mitchell, 400 U.S. 112, 127, 91 —8.Ct. 260, 266, 27 L.Ed.2d 272, 283 (19704 ; Reynolds ; ‘ y. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (964) ; ; Pate. El Paso County, 324° F.Supp. 935 (W. D. Tex. 1970) aff'd 400 U.S. 806, 91 S.Ct. 55, 27 L.Ed. . 2d 38 (1970). The gravamen of equal protection lies not in the fact of deprivation of a right through state action, but that such deprivation is accomplished by means of an invidious classification. Snowden v. | “Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Bd. 497 (1943); Tandsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 | 8.Ct. 337, 55 L.Ed. 369 (1911); Walters v. City of St. - _ " alice bs land Nhat Abt to eh RSs hy a teh bento Louis, 347 U.S. 231, 74 8.Ct. 505, 98 L.Ed.-660 (1954). ‘*... [T]he necessity of a showing’ of | ful dis- crimination is no less in a case involving political rights than in any ea | It was not intended by the Four- teenth Amendment and the Civil Rights Act that all ‘ matters formerly within the exclusive cognizance of ° the states should become matters of national concern.” Snowden v..Hughes, supra, 321 U.S. at 11, 88 L.Ed. at 505. See Oregon v. Mitchell, 400 UfS‘.112, 127, 91'8.Ct. 260, 266, 27 L.Ed.2d 272, 283 (1970). Recognizing that the nature of our federal system allows the states broad ' leeway with regard to legislation in: the field of éacial, economic, and poltical matters, the decisions of the Supreme Court teach us) that any classification result- ing from the-ajiplication of such laws doés not offend equal protection as long as itis reasonble and is ra- tionally related to furthering a legitimate state. in- terest." “The ‘constitutional safeguard is offended only -if the claSsification rests on grounds wholly irrel- evant to the achievement of the State’s objective. - State legislatures are presumed to have acted with- in their constitutional power despite thefact that, © in practice, their laws result in some inequality. . A statutory discrimination will not be set aside if. , any state of facts reasonably may be conceived to_ justify it. — | McGowen v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 _L.Ed.2d 393, 399 (1961) ; McDonald v. Board of Elec- tion Commissioners of Chicago, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969). | - The Supreme Court has recently had occasion to ex- plore in depth the nature and extent of the power of the states to prescribe qualifications. for voting and to ‘Financing the primaries and regulating the ballot. _ ° Tegulate the electoral process in Oregon v.. Mitchell, 400 U.S. 112, 91 S.Ct. 266, 27 L:Ed.2d 272 (1970). De- spite the diverse views expressed in the fige opinions . = written in that case, it is clear that, with the exception of the statement regarding the power of @§ngress un- der Article I, Section'4, the Chief Justice and Justic Harlin, Steward, and Blackmun agree with the follow- . ing statement from Justice Black’s opinion: | ‘‘No function is more essential to the separate . and independent.existence of the States and their governments than the power to determine within the limits of the Constitution the qualifications of their own voters for state, county, and municipal offices and the nature of their own machinery for fing local lic offices. Pope v. Williams, 193 . _ US. 621, 24 8.Ct. 573, 48 L.Ed. 817 (1904) ; Minor > v. Happersett, 21 Wall. 162, 22 L.Ed. 627 (1874). Moreover, Art. I, §2, is a clear indication that the Framers intended the States to determine the qual- ifications of their own-voters for state offices, be- cause those qualifications were adopted for federal offices unless Congress directs otherwise under Art. I, §4. ... It is,obvious that the whole Constitution reserves to the States the power to set voter qual- ifications in state and local elections, except to the limited extent that the people. through’ constitu- tional amendments have specifically narrowed the - powers of the States. Amendments Fourteen, Fif-— ‘teen, Nineteen, and Twenty-Four, each of which has assumed that the:States had general supervi- | sory power over staté elections, are examples of express limitations on the power of the States to govern themselves. And the Equal Protection © Clause of the Fourteenth Amendment was never — intended. to destroy the States’ power to govern themselves, making the Nineteenth and Twenty- Fourth Amendments superfluous. . .. In.interpret- tng what.the Fourteenth Amendment means, the Equal Protection Clause should not be stretched. - to nullify the States’ powers over elections which we, 9g — - we they had Weforé the Constitution was adopted and which they have retained throughout our history.’’- Id., 400 U.S. at 125-126, 91 S.Ct. at 265-266; 27 L.Ed.2d at 281-282”? (Emphasis added). A remote limitation on a particular voter (the possi- | bility that his candidate is not on the ballot) is no rea- _ Son to depart from this principal. The Supreme Court has never suggested that the states have. anything but an unimpeachable right under the Constitution to pre- _ Seribe election procedures within state, and, as long as those procedures ‘‘do not invidiously discriminate against any discreté and insular minority’’ they cannot constitute a denial of equal protection and need not.be _ judged by the compelling interest test. Oregon v. Mitch- ell, 400 U.S. 112, 296, 91 S\Ct. 260, 349-350, 27 L.Ea.2d 272, 379 (1970). Consequently, the laws in question should not have been judged by the compelling interest — _ test. : | The question has long been laid to rest with re- spect to. the constitutional right of a candidate.to run for. public office. In Snowden v. Hughes, 321 U.S. 1, — — 88 L.Ed. 497 (1943), this Court held that the right to - become a candidate for state office is a right or privi-. lege of state citizenship, not of national citizenship, - which alone is protected by the privileges and fnmuni- ties clause of the Fourteenth Amendment. Qhis Court made the following observations, at page 502: _ “The protection extended to citizens of the Unit- _. €d States by the privileges and immunities clause ‘ includes those rights and privileges which, under the laws and Constitution of the United States, are incident to citizenship. of the United States, — '. but does not include rights pertaining to state cit- izenship and derived solely from the. relationship of the citigen and his state established ‘by state. law. Slawghter-House Cases, 16 Wall. (US) 36, 74 79 21 L ed 394, 408, 409: Maxwell v. Bugbee, . . —_ 37 . 4 c— ig , -—-eome @ candidate’ tor-state offiee,-like the right to Happersett, ‘21 Wall. (US) 162,: 170-178, 22 tL 627, 629-631; Pope v. Williams, 193 US 621, 632, . 48'L ed 817, 822, b4 S Ct 573; Breedlove v. Suttles, 302 US 277, 283, 82 L ed 252, 256, 58 S Ct 205 isa right or privilege of state. citizenship, not ‘of national citizenship which alone is protected by the privileges and immunities clause.” . ‘The Appellees and the. court below’ attempt to dis- : tinguish this case by stating that the ‘complaint does not go to the privileges and immunities clause of the Fourteenth Amendment, but rather goes to the equal protection clause‘and therefore Snowden v. Hughes is readily distinguishable. A careful reading of Snowden v. Hughes, however, clearly shows that this Court also dealt with the equal protection clause with respect to -~ the constitutional right of a candidate to run for public office in one of the states of the union. In dealing with a the equal protection clause, the Court anes on in Snow- . ; den, supra,.to state the following: | -~More than forty years ago this Court dite: - mined-that an unlawful denial by state action ‘of a right to state political