Appellees Brief — Bullock v. Carter

Supreme Court brief1972

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“ Ste ee oe +I<AVE® OO. » ee - 5 6

| iia stares F ee r] vias ¢ . ¥ 2. :

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nm s bad

No. \70-128

4 .

MARTIN DIES, oe ET Atos

vs.

~ :

VAN PHILLIP CARTER, ‘pr Alcs:

On Appeal from the United States District

Court for ~ Northern. District of Texas,

_ Dallas Division aa

INDEX -

_ Statutes Involved eeoeeeeeeeeeecece. -

Question Presented centeuaall . boas:

Dretas ob aniknd sb ER 0 is oxo 3.

peansanesAncihealetcicn sodas tebe 4

| Arguasan: . > ~

, I.No Question Present in Texas -—

Wr iakh ii ois g B95 wo 8S. 18 .

Il. Appeal Not Moot .........-.4. 18 |

IH. Wealth Classification per se’

Unconstitutional ....3.......0... 21

_ I Appellant Steal biluateabean con on

V. State Actloes:isé 56 oii os hded BS:

_ VI. Correlative Rights- Voters &

Candidates cece ee eeceesveccceee BO

4 Conclumitin is: 6xidvi cla.a's denied co5 saws 48

| Certificate of Service.............. 46

Exhibit "A'-Election Statutes ....... 47 |

Exhibit "B"- Dies ‘Legislative hieaes. 55- :

| Exhibit "C"-1970 Election Returns. “ 79 Se

INDEX OF. AUTHORITIES

Adair v. —— _ Page ;

74. Neb.776.......00. oe |

Anderson v, Martin . 1

+ | rrr 9 |

: Benites v. Hampton, » a

(123 :U.S.519 ...0....... 16

Boddie v. Connecticut

. _U.S | (dec. 3/2/71)......42..

Bollinger v. ‘McLaughlin

®° 22 S.D.206 .....

Buskin v. Brown -

S76: Fr, OG B08. cee cc ce BF

Campbell v. Davenport. |

ee | | ne 37

‘Cipriano v.City of Houma ;

e $75 U:S. 701 ..... ce esas . 41

Elmore v. Rice oe

165 F.2d 387........ re

Georgia Socialist v.Fortson’ = + .c

' 315 F.Supp.1035 ....... 40

Griffin v. Illinois é |

962°Ui6548..... seconde bd

-Jenness v. Fortson pe ges

_U.S. ",29L.Ed.2d 554 ..22, 40,42

Jenness_ v. Little -

306 F.Supp. 925.......%. 40

_ Harper v. Virginia aa. of Education.

‘383 U.S, 663--:--+-+-+++ 38,39

Kramer v. Union Pres School

395.U.S. 621+. es eee eee 41

Kelso v. Cook a ek

184. Ind.173 --ccccrseces 40 ©

Ledgerwood v. Pitts as = hye 4

122 ‘Tenn. 570......+++++- 40. :

Moore v. Ogilvie, bes |

906 GG. B14,» 62605545 -20

New Haven tacialiee Cases,

: 399 U.S. B92 >. 2.0.0... 2,16 * @.

Nixon v. Condon» | _

| 206'U.8. 78.5... 60 ES

Nixon. v. Herndon .

272 Y.S.536...........,.35

Portland v. United States = |

| OF U.S0 Poo 8

Russell v. United States |

369 U.S. 749... 0.0.2... 2,16

Smith v. Allwright. | 3

321 U.S. 649, cc coe 17, 35, 36

Smith v. Bennett — es | ap

365. U.S. 708,.......... 42

Snowden v. Hughes. _

| -321 U.S. 1 ek kee. eserves e 27, 41

. Terry v. Adams.

945 0.5. 464 ok ec tce. 37

‘Travelers Health v. Virginia —_

_. 339 U.S.643 ...... ees.

Turner v. Fouche, | .

| $96 U.S, 346...,........41

United States v. Alabama

252 F.2d 95 ........5....39

United States v. Texas - _ .

280 F. Od 836... oS; Ce

Whitcomb’ v.. Chavez ASS

U.S. dec. 6/7/71) ae > 8

Williams v.: Rhodes - .

Cucdetiod ha rita coweeye 44

Omitted Citations - =e toe. ¥ 4

J.I.€ase co. v.,Borak : v

. 2 U.S. 426 Sa. ia 2,16

Evans v. Cornman —- syopieh ys

| $98-U.S.419 ....e00, 48°.

-- Phoenix v. Kolodziejski |

$06 UU. M04, «0 05505505. .-

1. Constitution

_. First Amendment ...,... 1, 2,8, 9, 14, 21

= Fourteenth Amendment...1, 2, 7,8, 9,14, 21

2. Texas Election Code _ _

| 13.07 ccc ccccowrccsede 2,4,8,17,18 ,

eae a 1: 2,4, 8,12,17,18

_ ~.. *= $8; 08a . vee e ee eee ceeeene 2, 4,8,17,18

BS AO onc ts cewescss +++ 2, 5,8, 20, 34

“13. 16... see ws Casccacees, By Ot 47,18

s. ao 12

13. 08a-1 ...... bees - 18, 19, 20, 23, 43, 44, ct

~~ 18.50 wc ecccccccce sacs» 92,44

. HOB. 5- Texas (1971. ) ....18, 19, 20, 23, 43, 44, 4°

3. * Supreme Court Rules

Rule 40....... teceeon Bibl T

4. Fed. Rules Civ. Proc. \

Rule 24 e e ee 6 eee78ee:s - . ee 3. e

5: Texas Constitutign | :

Article 4_ : | .

Section . he res 32 |

Section 22. gewews PviveE. -*

6. Texas Statutes - oat

bar Article 3945.. 6.0 0.0ceete© ‘43 ;

-* Ea General Laws......37

“4, ' Arizona

N Constitution, Art. 7, —- 14......45

Statute 16-301 to 16-306.... 45

8. Law Review ee 3%

" §'Miss.L.J.139........ 37.

Direct Primary in Idaho: .37

9. The Poll Tax....... otewec.

Wena iA aes ely Sdn pennants

i Rt | ANB Ta 82 9 ea

©.

No. 70-128 .

IN THE ©

SUPREME COURT OF THE UNITED STATES

October Term, 1971

_ MARTIN DIES, JR., ET/AL.,

| Re Appellants,

vs.

. VAN PHILLIP CARTER, ET AL...

Appellees

On Appeal from the United States District. .

Court for the Northern District of Texas,

ee Dallas Division

BRIEF FOR APPELLEE PATE AND |

| '.__GUZMAN-ET AL. _

| §$TATUTES INVOLVED ,

FIRST AMENDMENT:' SACU ee

-. " Congress shall make no law * * *

abridging the freedome of speech, or .of the

press; or the right of the people peaceably

to assemble, and to petition the Government

for a redress of grievances.” 3

. : . * | ~

FOURTEENTH AMENDMENT: —

‘ _"All persons born or naturalized in 3

the United States, and subject to the juris-

diction thereof, are citizens .of the United .

: States and the ‘State wherein thy reside. No-

‘State shall make or enforce any law which

shall abridge the privileges or immunities

of citizens of the United States, nor shall .

any State’ deprive any person of life, liberty .

or property, without. due process of law; nor

-deny to any person within its jurisdiction the

equal protection of the > laws. 2

The Texas statutes held invalid by the

court below are Sections 13. O7a, 13.-08,

13.08a, 13.15, and 13.16 of the Texas

Election: Code. . These statutes are set forth.

in n Apgengie: A herein.

QUESTION PRESENTED

The sole question saps & by

Appellants in their Jurisdictional Statement

ae reads as. follows: son ageet

oe Whether Articles 13. 07a, 13.08,

13. 08a, 13.15, and 13.16 of the Texas Elect-

ion Code are unconstitutional in that they

violate the First and Fourteenth Aniendménite

of the Constitution of. the United States." °

‘The Rocetisints have not ievived their

sole question presented or any other question

in their brief and have accordingly abandoned °

their sole claim or any other claim by failure

to comply with Supreme Court Rule 40 (1) (d) .

(1) and 40 (1) (d) (2). New Haven Inclusion |

Cases, 399 U.S.392, 481, n. 78 ( 1970); Ji.

Case Co. v. Borak, 377 U.S. 426, 428- 429

(1964). Russeil v.. United States, 369 U. Ss. )

749, 754,n.7 (1962 ); Travelers Health Assn.

v. Virginia, 339 U.S. 643-651, n.4 ( 1949 ).

‘ STATEMENT

= Pome :

This case originated in three separate

suits filed in Federal District Courts in the

Western District of Texas and the Northern -

District of Texas ( A.9,11,34 ). A motion to.

intervene and consolidate was filed by Appell-

ees Jenkins and Guzman, et al., ( A. 49-94). -

Chief Judge John R. Brown, U.S.Court of

- Appeals for the Fifth Circuit took notice of the

transfer of Pate's. cause from the Western

’ District of Texds to the Northern District of

.Texas and ordered the three judge court below

: “reconstituted (A.3).. These-suits were con- -

solidated for all purposes and Appellees Jenkins

and Guzman, et al., were allowed to intervene

as voters Federal Rules Civil Procedure 24

e) (2) (A147) . eS

——

The Aielicee brought ‘thielt! ianicun: on

behalf of themselves and as class actions.( A.

11, 70,85) to enjoin and restrain the enforce-

ment of Articles: 13. 07a, 13.08, 13. 08a, 13.15

and 13.16, Texas Election Code and to have

these statutes declared unconstitution®. The

three judge court below granted the @lief i *

requested ( A./145-159 ) and enjoined the State

of Texas, through its political parties, from

_ the enforcement of these Statutes and declared

them unconstitutional ( A.160-161). The | |

. Appellees: Pate's and Wischkaemper's motions

for preliminary injunction were granted and

they were relieved from payment=of the filing .

_ °fees with the proviso that ‘should their claims

be, later rejected that they would then have to y

pay the fees not: paid -( A. 106-107) and their

names were “placed on a ballot in the razed 2,

ee Oe

filing fee . ‘prescribed for some counties.

1970 Demotratic Primary election - A. 112,

117). -

Article 13.07a, Texas Election Code

_ provides all candidates subject to assessment

ay the. County Exective Committee for a part

of the expenses of holding the. primary election

must. pay- fifty dollars at the time of filing’ their

application for a place on the primary ballot.

However, candidates for the State Board of

Education need pay only fifty dollars total and a

“candidate for the legislature need pay only the

maximum he may be assessed or the fixed

Article 13.08, Texas Election Code.

_ authorizes the’ county committee to estimate the

cost of the primary election and to apportion

such cost among the various candidates for

nomination for: District, County, and precinct

offices except for the offices of Justice of the

- Court of Civil Appeals, State Board of Education,

state senator, and state representative if their

assessment or fee is fixed at a definite amount,

"In making the assessment upon any candidate the

committee should give diie consideration. to the

_ impoftance, emolument, and term of offi¢e .

for which the nomination is to be made" i

"Article 13. 08a, ‘Texas Election Code.

provides that candidates for any precinct,

county or district office .and the office of

Congre s in counties with a population of

one million or more, except for. candidates

: for the State Legislature and State Boar of

Education, shall not be assessed more than .

_ ten percent of the annual salary for any |

pee i, °)

office of two-years term and inode percent

for any office of four year terms. Firther-

more, in these counties a candidate for

'- State Representative may be required to

an amount not to exceed Five Hundred dollars». =

and One Thousand dollars for State Senator.

In counties with a population between 900, 000

and 1,000,000 candidates for State Senator

‘and State Representative shall pay $300 to have

their names placed upon the primary ballot, |

while candidates for State Senator and State

Representatives in counties with a population

between 650,000 and 900,00 shall pay $1,000

>», ‘and $600 respectively. Candidates for State

, Representative in districts covering from 8

to 9 counties need pay only os. in each county. |

Article 13. 15 Texas Election Code .

provides that candidates for #&).S.Senator and

all candidates for state officer must pay —

$1,000 to: the ‘Chairman: of the State Executive

‘Committee while candida for Congressman-

_ at-large and for justice of the court of civil |

appeals shall pay to state executive committee

five percent of one year's salary. The above

candidates need not’ pay a filing fée or assess-~.

ment to any other person r committee. .

"Article 13. 16,T Election Code

provides-unless otherwi provided, no candi-. —

date for State Senator’ shall pay to a county

- executive committee more than One Dollar.

for counties of less than 5, 000 population; .

five dollars for counties of; “000 to 10, 000

: population; ten dollars for.counties of more sg

_” than 10,000 dnd Jess than’ 40, 090 population;

. fifty dollars. for counties - 40,000 and. not

mére than 125, 000 population; saeecity- tive

for counties of more than <125, 000 to

: 200, 000-. lation. However,~ candidates for

State. Senator ~in_any. senatorial district of two

couhtiés need pay only One Hundred dollars .

” regardless of population of such > ,

Furthermore, except as. otherwise provided

-~ in. the code, any candidate for’State Repre-

sentative need pay- only: a total “fixed filing

fee of $150.00 to be prorated among the .

counties, if more than One *

The Appellees nae that the above

statutes were unconstitutional on the grounds

that said statutes deprived Appellees of, an

‘oe ok equally effective voice. —_—s

in the election process by an

invidious discrimination by § —

' imposing * * * exorbitant, unreason-

an te ably. arbitrary, capricious, — ar

. irrelevant, and outrageously high

filing fees or ‘assessments. which .

bear no reasonable relation to: any

legitimate. legislative ‘purpose. and

such filing fees are ‘not germane ~

- to_one's ability to participate 4

intelligently in the electoral pro-

™ cess as a. candidate for public office. .

. ‘The filing fees or assessments:

»- * are so high they may be presumed >

-to have been imposed with the

- intention of preventing the candidacy

of persons unable to pay. or who -

: fail or refuse to pay the filing fees

| @ 208 assessments imposed. om KN

“these fees also » peeouit t qualified - e

voters: front*voting for those persons

whose candidacy is prevented by © -

- guch filing fees. Furthermore,. |

the introduction of wealth as pay ow,

ment of a fee asa prerequisite

or measure of acitizen's or.

voter's qualification’ to- have his .

name. placed. on the primary _—

* e

~ ballot, or to vote, is to intro- -

_ duce a capricious or irrelevant -

factor , and the requirement of

fee paying in ‘this coritext as a

condition to be a candidate or voter

3 ** Causes an invidious discri-

‘mination that per se- -violates the.

Equal Protection Clause and ae Se

furthermore, the Texas Statutes

under attack permit and ‘provide

an invidious classification discri-

mination between various candidates |

for different offices. by having

different filing fees for the various

candidates .* * * Furthermore,

defendant. will effectively deprive

the plaintiff of hjs right to vote, .

for the right to’run for public

office is a correlative of the . .

right to vote.. The defendants have

denied the plaintiff and class. :

- plaintiffs their fundamental. political

right of freedom of association |

( political assocation) for the purpose |

of voting and ‘being nominated , jas .

. candidates for ‘public office.

in the democratic primary ‘in

- violation of the First Amendment .

by reason of the Equal. Protection

‘and Due Process clauses of the

Fourteenth Amendment, by an

>. invidious discrimination through

‘the establishment of filing fees |

as.a prerequisite to ‘running for -

nomination to public office * * *

Articles 13. 07a, 13. 08,13. 08a, 13. 15 .

and 13.16, Texas.Election Code, are

void.and unconstitutional as ‘they.

violate the equal protéction and

due process ‘clauses of the Four-

teenth Amendment,. and the Freedom

of Assembly clauses of the First

Amendment to the United States

Constitution, ‘in that they impose —

and’ permit filing fees or assess-

ments" * + + primary. election * * *

and in future primary elections, ©

‘ ‘upon persons who by reason of their |

‘ -lack of funds or ‘poverty, are un- —

able to. pay said filing fees or.

assessments or fail or refuse to

gpay said filing fees or assessments. |

“* * -%& In setting filing fees and

assessments at such unreasonable | .

and outrageously. high level, and

pexmntene some candidates to q file

* * by merely paying a fixed

; re ‘or for State Legislator, - the

fee of $150.00, the statute in

question * * * . deprive the plaintiff

_and:-all other persons similarly

situated, of rights, privileges, and

ee os ? } ae

immunities Secured by the seek =

protection and due process Clauses —

of the 14th Amendment, andthe

‘freedom of assembly clause of the ~

First Amendment * * * and establi-

shes an invidious classification

discrimination ** * * [Plaintiff]

are deprived of. their right to seek

‘nominations to public office, -to seek .

public office, and to the right to

- yote in thé 1970 and in all future

primary elections " ( A.11-13, 17-19).

oy The intervenors alleged they desired

to cast their votes in the 1970 primary and

future primaries for the particular Appellee.

they support and for candidates of the class.

represented by said Appellees. -However,-: «&

_ intervenors could not ‘so vote for the candidates *

of.their choice because they were poor persons»

unable or unwilling to pay tke filing fees ‘assess-

_ed agafgst their candidates who by reason .of .

their economig background-can-best_represer

intervenors' political views and economic

‘interest (A. 85-87 ). |

The precinct offices referred to in

"> (the “above .Texas Election’ Code Statute are

justice of the peace and county commissioners.

County offices include County Clerk, County |

-Treasurer,- County Surveyor, County Courts.

at Law and County Judge, while district

offices cover district courts, district

attorney and dist?ict clerk. These statutes

treat Justice of the Court of Civil Appeals,

_ State Board of Education, State Sénator and :

= State Representative in various ways. United

9. i °

-_ States Senators and ftetirtesentatives: are also -

* meets) all qualifications to be a candidate in

treated. in various ways in regard, to filing .

- fees and assessments. State offices’ include —

governor, lieutenant governor, attorney

general, state treasurer, commissioners

<of general land office, state comptroller, |

supreme court: judges, court of criminal ae

appeals judges, .state agriculture commissioner,

.“, state railroad commissioners. ( A, 121-140).

- . ‘ é

It was gtipplated that Appellee Pate _

the Democratic Primary Electton for the

office of County commissioner ( A. 109 ).

.Pate timely filed his application - accompanied —

-. by. the required $50 deposit for a place jon the

May 2,1970 Democratic Party... primary ballot ~ |

-as a candidate for county commissioner ( A. 111).

ns The three judge court in their opinion below

erroneously . stated that Appellee, Pate could.

- not. pay the $50 deposit (A. 147. 7 The El ——— =

_ Paso Democratic Executive Committee |

-assessed candidates in the said primary seven-

teen percent of assessed salary for the office

for which they sought election, except where

a fixed fee was -set by state statyte ( A.110, 121 ).

‘Pate was assessed $1,424.60 as a. filing. fee

to be. a candidate for County: Commissioner ( A. —

- Pate could not yt pay said assessmént-and the

“Appellant McAlmon refused to place Pate's

name on the ballot .for the May 2, 1970

primary (A. 111,112,). Pate was relieved

from rian Fe gaid assessment by tlie

- Court-betow ran in the-May 2, 1970

_ primary election (A. 112 ). Pate lost said

_ primary ‘election, but was endorse said

election = one of the two major newspapers in

sz .

J. 10.

—_.

El Paso, Texas and received a total ‘of 3,060

votes out of a total of 10,685 votes. cast, while ae

the incumbent received 6,013 and a third candi-

até received 1,612 votes (A.112)... Pate i :

announced .and prospective candidate for County

Commissioner in future elections and will be

unable to or will refuse to pay future filing —

‘fees and assessments (A.112,113).. Appellee

Carter is a future candidate for state-wide

commissioners of general land office and —

“unable to pay the fixed filing fee of $1,000.

(A. 113-114) Appellee Wischkaemper was a

candidate for county judge in Tarrant County, on

Texas who could not pay $6, 300 fee assessed |

for that office (A. 116-118)~ He will be a’

candidate in future elections for county judge

and will be unable to pay. the assessment .

(A. 117-118). Each intervenor is a voter

unable to vote for the Appellees and their

a °

class because of their—inability to pay their aa

~~ candidate filing fees and assessments (A.

114-115-,119). Poe on One

+» In\Texas a person cannot. have -his

name placed upon a primary election ballot

unless he pays the filing fee and ‘assessment

made by the county -executive committee, or

fe executive committee of. the “political

party running the primary election. The.

fees and assessments collected by the

_ county executive committee are the only ~

source of revenue for. operating the primary.

These costs include the’printing of the official

ballots, ‘renting polling places,. providing and°

distributing all necessary poll books, blank

stationery and voting booths required, compeni-

gation of election officers and clerks, and

. ii. - io Pie ,

': all other necessary expense of holding the

general and second primary and 5. percent

of these expenses are given as compensation .

Ao the chairman and secretary of the committee. |’

Articles 13.08 and 13.18 Texas Election Code.

Any funds in excess of election expenses are

refunded to the candidates who made payments:

} _ to. the county executive committee. _ Those candi- |

dates for. state officés such as governor who.pay |

a fixed filing fee and no assessments to the state

‘executive committee receiv -no refund and their

fees are for the the exelus ive use of the State -

Executive Committee (A. 109- 113). : -

‘There are two hundred and fifty- -four

counties’ in Texas: ‘The Attorney General of:

-° Texas obtained inforination. on the assessment . —

of candidates in the democratic primary in

58 of these. counties andsuch was made a

\ part’ of the record as a stipulation (A. 116).

SS to the high cost of printing of the single

appendix, Appellees. could not pay for the.“

complete printing of this information. The.

en <Appendix contains information’on 18. , —

‘different counties (A; 121-139). This informa-''

tion, reflects that a justice of the peace in El -

Page County was. assessed $3,862.40 while

ther justice of the peace was. assessed ——

| $1,656.88. In this same county a district .

judge was assessed $4,063.00 and a state’

représentative paid a fixed fee of $150. 00

(A. 12). 7 . .

. The following table shows a@_sampl |

of a8sessments made against candidates in ..

"various counties in the 1970 Texas Democrat- -

__ ic Primary Elections: ( A. 122-134 ) ;

| 1970 Danscemie Primary Assessments

County» District County County

, : - _Judge Judge Comm, 4

Travis ‘ — $4,860 © $3,204 $1,171.89

McLennon 3,405 2,160 1,789. 00:

Wichita = =§»-«- 2,954 =~, 1 399. 90

Smith _ 2,400 - .2,484 1,560.00 .

Grayson ----- 2,082 ~~ 1,605.81

Denton / | 1,400 777. 777.00.

. 1,050: 973. 675/00

50. 100 ~~ 50.00

wooee 476 * «£23.00

----- 6,250. 6, 250.00

6,720 6,480 5, 520.00

, _ 4,840 6,300 = 4, 200.00

Tarrant . 8,900 6,300 — 6, 10000

- The following table. reflects a sample.

of the assessed salary for various ‘public -

offices in the 1970 Texas Democratic Primary. |

1970 Salaries Elected Public Officers .

“County _ District’ County County

Judge —-Judge Comm.

- El Paso $23, 900. $14, 400 $8, 380

3 .

Travis. | 27,000 13,480 12;500

McLennan : 22,700 14; 400 13, 428

Wichita - 24,620 ------ 13, 200

Smith so * 26,00 ~ 20,700 13, 000

ww Ye:

13.

2 a ®

‘4

‘

Grayson ~ _---:- 12,230 9,432

- Denton - —-20,000 12,000 —_—12,000

. Chambers’ = 21,000: 9,734 «6, 758

. Motley * * -nee + 6,146 | 1, 800

_ Carson ---- 7,944. 7,062

Ward + ----. 8,160 - 6,270-

_.° Dallas! - . 28,000 27,000. 23,000

Bexar - =—>-—s« 28, 000 22,500°. 12,000 .

te * The salaries of state elected ‘officers

_ Tange from $55, 000 for. governor of Texas to _

$14,800 for the lieutenant governor ( A.140 en’

_«. * The Court below, in its opinion and ws

| judgment, has declared the challenged pro-

_visions of the Texas Election Code unconsti- a

tutional because they infringe upon thé exer-- —

cise of voting and associational-rights without

‘any compelling state justification in violation -

of the First and Fourteenth Amendments ( A. -

185 55%". a OR Te ie oid ais

SUMMARY OF ARGUMENT. Fe

’ -" The merits of this case -present Texas,

” laws that have for 75 years required candidates

in Texas Primary Elections to pay for the

, whole. cost of running such elections.

'. ... May Texas condition the right to be a

"candidate and to vote upon wealth? NO. Any

_. state interest in requiring-candidates in pri-

_Mary elections to pay from $50 to $8, 900 to

‘financg the cost of the election is ‘per se oe

. invidious discrimination. ‘May the State re-

‘quire’ that candidates show voter support by —

'- obtaining money from voters to pay filing fees

14, :

: oe

and assessments?. NO. "any state inane. in |

requiring ‘candidate to ask his voter-support-_ es

ers to contribute from $50 to $8, 900 for filing is.

fees 4s ‘per ge invidious discrimination. 0)

“

sro

“re

yo. The right to. vote. and freedom of asso- :

‘ciation ( political associates ) for the purpose, |

of voting and being nominated are destroyed |

_ by the Texas abe esse :f iad for snancing.

elections. |

Texas has not. explained why statewide- ac

_ candidates are not required to‘pay for any part" — .

- of the cost of primary, lections.. These candi- _.

dates pay a fixed fee of $1,000 to tHe state ~ ss.

executive committee. d state. legislators |

pay a fixed fee that is much less than their .

fair share of election costs. This aspect of

the Texas. election law is also per ae. invidious

discrimination.

Baek REE aa Naty) ee

OMA: SAA

A poor: person. anda‘ no.so poor person :

under our constitution may. be required tp : show

,a significant modicum of voter support bfi- —

"signatures on.a petition, but he cannot be re- < - E

- quired to show support by asking- voters. or oe e

‘anyone else for $50 to $8, 900 to pay a state 5

; midi filing fee or assessmenit. : s

»* ee : §

“The alleged evils of state financed “4 Hy

primary elections ‘completely disappear when | e

a reveiw of other. state.election systems show &

that these alleged evils do not materialize att

even when no fee is required. -.,-

~ 15. . gee

ae i

ARGUMENT :

“i i |

"TENS COURT CAN DISREGARD

_:: ‘THE SHOTGUN BRIEF OF TEXAS

. AND AFFIRM, FOR THE TEXAS

_ BRIEF DID.NOT INCLUDE ANY

| “"QUESTIONS PRESENTED. FOR

REVIEW" .

Without including any ' ' questions pre- .

_ sented for review" .as required by Supreme

- Court Rule 40:(1) (d) (1) and -40 (1) (d)- (2)

_. |. Texas has filed a shotgun. brief. In NEW

>. HAVEN INCLUSION CASES, 399 U.S. 392, 481,; ©

n. 78, Just ce Stewart has stated that " The "{

> ~ Commi as not revived the issue in its >

_brief, nor has it responded in its reply brief

~-. "to the Government's contention that it has—

8 abahdoned the claim. Accordingly, we do not

-..» ° eonsider*the matter further" . J. 1.7 CASE CO.

‘vy. BORAK, 377 U.S. 426 , 428-429 ( 1964 ).

In BENITES v HAMPTON ,..123 U.S. 519-( 1887 )

the Court dismissed the case for failure of the

_ brief to contain specifications of errors.

PORTLAND CO. ‘v UNITED STATES, 82 U.S.

1, 15 WALL. 1 €1873 ), RUSSELL v UNITED

STATES, 369 U.S. 749,754, n. 7:( 1962);

TRAVELERS HEALT®-ASSN. v VIRGINIA’,

339 U.S. 643, ee n.. 4 ( 1949 ) a

ee The brief of Texas. clgarty- reflects

that by way of argument an,attémpt has ‘been ".

made to present additional questiong orto

change the substance of the question present- . “3

ed-in the Jurisdictional Statement. This —

Court's Rule 40 provides that questions -

not presented in ae with peragrapn

7 °

r ! .

SY > e e..

J -. .

(1) (d) (2) of Rule 40 will be disregarded,

a reqiest: a re-examination of the SMITH v

_ Action Rule, notwithstadning such was not

' raised in their Jurisdictional Statement.

as to which issues raised in the Texas “brief.

- . must be answéred. Indeed, this is the reason

why a brief must contain "questions. presented -

| of Texas Election Code Articles 13.07a, ~~ é

constitutional rights of voters and candidates

_ in primary elections. ‘Thé next step may have:

_ been the omission of any "questions presented :

_ in their brief before this Court. Therefore, _

appellees shall answer every issue. raised by :

that primary elections of political parties

‘this Court to affirm"upon the opinion below

: y a . . < S > e °

~ ‘ ra ee ” a

unless plain error is noted. These addition- -

al arguments cannot be. deemed to be sub-

sidiary questions. fairly. comprised within -

the jurisdictional statement question pre-

sented. An example of the methods of Texas

is found in their brief. at page 9 when they

ALLWRIGHT, 821 U.S.649 (1944), State | * |

The Court below held that "It. is undisputed *

are state action and Oe sie to the Fourteenth —

Amendment. "CA: 148 } a

Appellees are faced with a- ‘dilemma

for review’. A proper solution would be for

Pe yey Me alll

where Appellees hada fair opportunity to_

reply to the contentions of Texas.

‘ It is obvious that with the amendment

13.08, 13.08a,613.08a-1, 13.16, Texas has

taken the first step to evade the. lower federal

court decisions in“order to defeat federal

isp

Ri 0 imino Se Nan

the.argument of Texas. Notwithstanding |

: fcartige fsa ticks © a2 p -

“Elgg,

the foregoing, it: is urged that this Court .

affirm the judgment of the lower court in°

order to.establish a solid precedent in

_ this important area of law.

‘In the event. this Court doés not give

a difinitive answer by a memorandum affirm-

ance of the judgment below, or by a written

opinion,: then judicial time has been wasted

and future litigation concerning the same

situation will. appear shortly. Justice dic-

tates that this Court render a decision on the

merits now so that in the next ‘primary

election, Texas and citizen-voters of Texas

will know whether candidates can be forced |

to pay the complete cost of primary elections

in Texas. |

i .

THE CONTINGENT AND

_ TEMPORARY AMENDMENT

OF PART OF THE TEXAS .

ELECTION CODE HELD _—

UNCONSTITUTIONAL BELOW

‘ DOES NOT MAKE THIS APPEAL |

a MOOT. ?

. The Texas’ Legislature by H.B. 5

Special Call Session, 62nd Legislature,

¢ June 4, 1971 ) Amended Articles 13.07a,

13.08, 13.08a, 13.08a-1 and 13.16, Texas

- Election Code. However, these amendments

were contingent upon this ‘Court's action in

the case at. bar and such amendments are —

temporary in nature. Section 7 of H,B. 5

_ supra, eoncerning the contingent and

18.

and temporary nature of the Texas Election

.Code Amendments is set out. soca 2 3 £2

3 7 \ ‘

: ' Sec. 7 (a) This Act is enacted as a

contingent, temporary law, : to become oe

effective only as stated in Subsection ( b) |

of this section; and if jt<does become 7

effective, it expires on December 31, 1972.

; (b) This Act becomes effective only |

| —_ the condition 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 v:

Martin. Dies, Jr., et al, by action which be-

comes final before Japlary 1, 1972; or. ©@&

é ~~)

(2) the Supreme Court of the United

States affirms or refuses to review: the judg- .

_ ment of the district court in the aforesaid

case, or by other action taken upon an

appeal of that case the Supreme Court rules—

that either ‘of: the following sections of the —

. Texas Election Code a they exist before — ~

the amendments made by this Act ‘violates

the Constitution of. the:United States:

Sections 185a, 186,186a, 193, and 194.

Attorney General of Texas shall certify to.

the Governor’ and.to the ‘Secretary of State

. whether either of the two conditions stated

in Subsection: (b ) has ‘been fulfilled, and

the Governor immediately shall issue his.

19,

‘. See m ¢ ce .

See SANT SB oe Re rn ma ere ame

See 7

‘ - hs dang pe et

i asa rii cedeslae Ss aaaa aie

RE RY peer ype pp ren

Sal baa bay

San ah, Beak Ba

Se ee nay eens

‘

™,

proclamation declaring whether this ro

becomes effective. If either of the conditions:

dor effectiveness is fulfilled, the Act takes

effect on the cate of the Governor's pro-

clamation. ‘4

(a) If this Act ‘ekee effect, dpon its

expiration on December 31, 1972, the law as

_it- existed before y effective date -of the

Act again becomes“ operative until otherwise

provided by the Legislature. .

It is undisputed that each Appellee

and class appellee herein will béeither a .

candidate or’voter in future Texas primary

elections to include those to be held after

‘December ‘31, 1972 (A. 109-119, 148 ). and

they -cannot and will not pay the filing fees +7

and assessments required of candidates in™

such Texas Primary elections. Furthermore,

this is a class action brought by prospective

candidates and voters who could not pay °

' filing. fees-and assessments in 1970 and

- their class will not be able to pay these -

| unc nstitutional fees and assessments in

= A Texas primary elections. In light

ee of these facts, ‘no mootness. mrerere,

. The pucden of the Election Statutes

declared unconstitutional remains ‘for .

elections to be held after December 15, “1972,

except Article 13.15, Texas Election Code

was not amended. These statutes. will be

effective in the future. In MOORE v OGILVIE

394 U.S.814 ( 1969 ) Justice Douglas wrote

that " But while the 1968 election is over,

the burden which MacDougall v. Green, supra,

20.

allowed to be placed. in Ag, ree ae of

candidates for statewide offices remains

and controls, future elections.* **,The - ,

problem is therefore! capable of repetition,

yet evading. review', Southern Pacific

Terminal Co. v. Interstate Commerce

Commission, 219 U.S. 498" and this Court |

turned to the merits:' WHITCOMB v. CHAVEZ,

__U.S.__( decided June 7, 1971). :

It is urged that this Court now turn.

~~ to the merits. o the | case at bar. |

™

Ill. ere &

THE" TEXAS ELECTION SCHEME

-FOR FINANCING PRIMARY

ELECTIONS IS UNCONSTITU TRONAL

UNDER ANY CONSTITUTIONAL

_. STANDARD APPLIED.:TO

se CANDIDATES OR VOTERS. .

The Texas Classification of. candidates -

by the fength of their pocket ‘books alone as the .

yardstrick of whether their names appear or

~ do not. appear on the primary ballot is uncon-

stitutional under the First and Fourteenth

Ameridments and cannot be saved by. Texas

as a means to control and limit the manic.

LALLA MRE Male Brits ei stecs a EEUeBbis Oee ONES ite Le ey tA

| | The texas Election ‘Code creates by

State Action a favored group of citizens

( rich candidates and rich voters ) and the

_ grant to them of: preferred political rights -

.in primary elections is the worst of all.

_ discriminations under a democratic system

_ of government. Constitutional . rights extend |

— to primary elections where such. are eB

RoE Si hla Sv Re bial Bags: Whe ieidiaa haa

ea el ea:

: ' . °

’ ® . . % . .,

- 21. 2,

Qe Ne

v”

an integral part of the procedure of choosing

elected public officials and in Texas demo-

_ cratic primaries. effectively control the

choice, ( A. 156 ).». There is more. to the

right to vote than the right to pull a lever

on a voting machine, or to mark<@ piece of

‘paper as a ballot.. .

Federally protected rights suffer,

fon the fayared group has full voting strength ~

by reason of their wealth. . There is no-|

restriction on the ‘primary ballot, except

office qualifications, other than wealth. In

other words,. any person otherwise qualified —

‘can place his name on the ballot by financing

the cost of the election. The groups not in

favor and unable to pay, have their votes

destroyed when a ‘candidate without wealth

‘is not pene ee to ‘be a primary candidate. /

ame -

In JENNESS Vv FORTSON, _v. Ss. :

29-L.Ed.° 2d 554,562, décided June 21, “1971,

this Court held ‘'there is an important state

'. interest in requiring some preliminary showing

of a significant modicum (a little ) of support’:

before printing the name of a political organ-

ization and its candidate .on the ballot—the ”

‘interest, if no other, in avoiding confusion,

deception, and even frustration of the demo-

a cratic process at. the general election", and ‘

"the fact is that there are obvious differences

‘in kind between the needs and potentials of a

political. party with historically established

_ broad support, on the one hand, and a new

or small political organization on the other"

for"sometimes the grossest discrimination «.

ean lie in treating things that are different .

22. :

O°

v° . oe

as - thougt? itisy were. exactly. alike * * +,"

Is a candidate and his. supporters - -voters

slowing merely a "significant modicum

(.a little ) of support’ before printing the

hame on a primary Ballot, By paying an

assessment: of $8,900? ( This brief, |

pages 12-13 ). . Aré there obvious differences

in kind for democratic purposes between. the

needs and-potentials of wealthy democratic

primary candidates and voters,—on the one

_ hand, ‘and not wealthy democratic primary

- candidates-and voters on the other? NO. —

- ~The record ( A.121-138;° This Brief, pages

12+14 ) herein reflects that a democratic ~

candidate ina Texas primary must make a.

- preliminary. showing of a significant personal

—_—

wealth or by willing and wealthy supporters:

before his rlame is printed on a primary

ballot. And this showing is. based significantly

on the length of pocket books aléne. There are

no nominating petitions or write-in candidates

‘ii Texas Primaries ( H.B. 5, supra, not ©

considered applicable here ). This showing of

support in the primary requirements range

from $1,424.60. for county commissiorfer in

El Paso, County, to $5,520 in Dallas County and

from $3,862.40 for. justice of the peace,

precinct 7, in El Paso County,. to $4, 320.60

‘in precinct 1.of Dallas County ( °A.121,133 ):

Indeed,’ a primary county clerk candidate _

was assessed $2,448 in El Paso’County in /

1970 ( A.121) and in Tarrant Cougty he was. -

asses. $6,300 (A. 135 ). Under the Texas

_ Primary Election Scheme the stigma involved

in being rich is that your wealth ipso facto

. gives you a "significant modicum of support"

and a place on the primary ballot while the

_ stigma of not being wealthy ipso facto gives

: Spears

you no " significant modicum af support"

| In thé 1970 democratic primary elect-

ion in El Paso. County, Texas, there were |

‘three candidates for. -County. Commissioner *

_of Precinct Four. Each candidate was .

assessed $1,424.60 to pay for the cost of

the election. ( A.. 110,112,121-122 ).. The

incumbent’ and ‘a third: candidate in said

election paid the $1,424.60 assessment and .

. Appellee Pate was relieved from this payment.

by the Court below (.A.106-107). “The third

candidate in. said election ipso facto had his

name placed on the ballot by payment of

$1,424.60 and received 1,612 votes.. Appellee

Pate had no ipso facto support by wealth and

was: unable to. pay this assessment and after the

April 3, 1970 order of the Court below |

-placing him: on the ballot,was able to obtain

an endorsement in the demgacratic primary

election of May 2, 1970 by ‘one ‘of’ the two

major newspapers in El Paso, Texas arid

3,060 votes in said election out of a total

of 10,685 votes cast ( A. 112.). is

_ Texas admits "that a man's wealth

has little to do with his qualifications to hold

‘public office ( Texas.Brief p. 9 ). (Emphasis

-added ) Under. the democratic process and* \

, System, a mars wealth has _no relationship

‘to his qualifications to hold “public office.

_ Then Texas asserts that "a poor man * : *.

‘does. not have to run in a party primary". \

''( Texas Brief pp. 9-10 ) Yet, in the over-

whelming majority of Texas political

offices, nominations by the Democratic Party

is tantamount to. election, it is clear that

e —- 24.

restrictions on entry into the ( democratic )

primary may significantly impair the right

to cast one's vote effectively". ( Thornberry,

Circuit Judge, concurring specially in court

below, A. 156 ).- '' Texas, open to economic .

initiative-and technical innovation as are few _

places on earth, changes at a-dizzy pace,

but its politics remain old-fashioned, © the

politics of a-one-party state resisting outside |

influence and rejecting northern preoccupations", |

WILE TEXAS VOTE? 237 The Economist 44

( October 31, 1970, number 6636 ). Then

Texas endorses the methods of "democratic

counties" under communist rule with the

_ position that "no voter is fenced out of the.

voting booth by the filing fee requirement. *

Sonsenenetemnmmmmennmmeeetl

- The filing fee simply limits the person for »

(

-_—-—>'_

whom the voter may cast his ballot”. Texas

Brief, p. 13) ( Emphasis added ). :

Appellants urge that "this case is about

_ fees and political party primaries, and whether

two _men:* one rich and one poor, are ‘being

treated ‘equally, or whether there is invidious

distrimination" ( Texas Brief, p. 14) and

that stability of our country is due primarily °

to the two party system ( Texas Brief, p. 17 ) 7

for any. other system will contribute to the

breakdown of such stability. Then they -complain ©

that the lower court's decision has placed

the ‘burden of financing primary eléctions upon

the taxpayers-voters ( Texas Brief, p.° 18-19).

What other burden should, a ‘free country meet °

first than to finahce the primary, general and

‘special elections that makes it a free country!

Texas ther says that the lower court decision

will insure a large list of candidates and that

25.

< ° :

; 7 ..

this is bad. -It is difficylt*to understand how

chmpetition that Appellee Pate _ oda Se to the

- incumbent was bad (A.. 112-113).

And Appellee Pate came in ‘second in a three

way. race with 3,060 votes out of 10, 685 votes ©

cast, but he did not have ”’ ‘sufficient support ~

to raise the filing fee" from wealthy voters.

($1,424.60) and therefore "he does rot need

tobe a candidate" - (Texas Brief p. 19).

Texas youre millionaires can run for office, in |

primary elections, but 99 percent - of your’

citizens-voters could not pay up to $8,900 —

cash for a district judgeship or $5;520 for a

seat as a. county commissioner (A. -133-135 ). _

. Texas, many of your elected officials miust ~~ _..

“look ,to. the wealthy to pay their filing fees'and -

assessments. and the resulting. charge of cor- i

ruption can be heard on radio and television

arid read in the paper everyday as of late. -_,

‘Texas, you finance your great university, your

_ school, your tremendous highway system, why

do’ you fight the financing of the” most essential

duty of government, when. you know that the ©

primary elections, in the most part, are tanta-

_mount to poner:

“e \ It is claimed: that oe political: .

‘ties regulate the size of their primaries’

_by the etatute under attack-( Texas Brief

20). This is not true, it is State. Action

based upon wealth that regulates primaries |

through a wealth classification. ‘'The interests

to be viewed and weighed and balanced .are

those of an indigent who cannot afford filing

fees, as opposed to the added work and potential ae

litigation that is created by *.* * a petition.” .

( Texas Brief P. 21) (Benphasia, added ) Are —

oat

: candidates and voters who éaintnitt pay fees—"—

_and assessments ‘of up to $8, 900. ( A. “121-139,

158 ) indigents? No. Nothing lese need be —

said: Nor. do,all persons without wealth break

the law: (Texas Brief p. 21 ) me}

. The Appellant's Brief continues with .

the assertion that men without money for ae /

filing fee amd assessment are not defeated in.

elections, buiy that such is " a relevant. question ”

as far as access” to. the ballot. is. concerned. ae ‘ eee

(Texas Brief p. 21- 22). Meatiice |

Then Texas _urgés that "as long as a poor man, 3

(one who.-dakinot pay up to $8,900) has a. 2

‘ ‘reasonable, Opportunity to get on thé ballot. uk 4

' Novémber (as an independent candidate), +

fact that ‘he cannot get. on the party's pelinary

- ballot, because he cannot _pay the filing fee bs

~ (up t6 $8, 900) does not invidiously. discriminate

against the:poor nner (Texas Brief, p. 22 )

( Emphasis added ). '" In the casé ‘at Bar, those ,,

against whom the: law discriminates can vote,

they just cannot get their own- candidate ,on the

‘ballot:"" ( Texas Briefp. 22 ) ( Emphasis Added).

The ,case ‘at bar. ‘is settled for Texas ‘Sdmits that

the "law discriminates". | An intentional or

purposeful discrimination has been shown and

admitted and under SNOWDEN v. HUGHES, 321 °

U.S. J ( 1943). the judgment, below. can. be affirmed.

Yet, Téxas argues there is no aticotisit’

tutionality for "a remote ‘limitation. on a@ particular

‘voter ( the possibility that his ‘candidate is not

, on the ballot ) is no reason to | ‘depart from. this

-." principal” of not strétvhing the equal protection

clause: ( Texas Brief 27 ).. In the 1970:

Democratic Primary Election in aaa ey

% " : . * - ‘e

ae Se Fa € ’ ‘’

‘ , oe, ees x

a. . Teas 3,060 voters would have had "a remote ,

limitation”on’their right to vote for Pate and

one of the two major newspapers in such county

would have had "a remote limitation” placed

on its freedom to endorse ‘Pate for election

in the primary (A. 112). Appellants will still

urge that it is not unconstitutional to deny

3,060-voters freedom of choice at the primary

ballot ‘box or to deny a major newspaper an

opportunity to endorse a candidate of their choice.

" Appellees me ( are denied) =

opportunity to vote for candidates they might

have liked to have séen on the ballot, but this

‘differs drastically from an absolute denial of

voting." ( Texas Brief.p. 24). The above

results are justified by Texas as reasonable |

and rational for they permit financing of primary

elections completely by assessments against

candidates and limit or control the number of:

people on the primary ballot. In order to ac-

‘complish the. above objectives, the Texas ©

Election Code ‘Statutes challenged herein classify |

candidates by ‘their wealth and there are even

- gub-classification for state representatives pay

‘a fixed fee of $150, the govenor pays $1,000 .

while the actual cost of the elections are paid

‘by local candidates such as a judge in Tarrant

County, éven if he is unopposed, must pay @

$8,900 assessment.’ This statutory election —

scheme for financing primary elections results’

in double. invidious classification for such permits

unconstitutional classification between candidates

. as ‘to the amount they must pay while some do |

not even have to pay for the election, but merely

support the State Executive Committee with

their fees. This primary election scheme is

per se exorbitant, unreasonable, arbitrary,

28.

. ; <—? , 9

- . J

capricious, irrelevant ‘to the election process,

_ and outrageously high. In effect, there is.

even discrimination between candidates, for

local candidates have.to pay for their share’

of the primary expenses while other candidates

(statewide and legislative) pay: no. cost of the .

primary expense or are subsidized to a point.

of the absurd. 7 a

How can Texas in ‘good: faith urge that |

a $8,900 "filing fee as an initial step in enter-.

ing a career ‘based - -on public service in elective

office is no more a form“ef invidious’ discrim- ,.

ination by wealth‘in the following of a career:

than the license fees required to engage in

_ may business professions or union dues."

‘(Texas Brief p.29). Would this Court permit

a $8,900 fee for a young attorney or doctor, a

to obtain a license to enter their profession

and require them to pay this fee again every

two or four years. The initial step to being

elected to 'a Texas office may well be a high

filing fee, for.once’ elected the high fees are

paid for by those who seek. to corrupt the

incumbent. It is common knowledge that high

filing fees-and assessments stop competition in

election and most elections go by default for

there are-no opponents running against incum-

_bents. “Yet these incumbents must still pay up

to $8,960 cash as assessments:

| The truth as to the intent and go

ef high filing fees was admitted cby Texas on -

April 3, 1970 in the hearing on ‘preliminary

relief ‘granted by the Court below. (A.106- .

107)°. There Texas told the three-judge court ~ es

-bélow, (Tr. p.50 April 3, 1970 hearing) that:

29. -

- Again asa practical matter, I have

found that the J udges sort of, at

- “Teast District Judges around El Paso

‘rather like the high filing fees, it

keeps the opponents out, that is a

different side of the same question.

But yes, that concerns me, because

- I think that it's not altogether fair

, to allow some people to run for State-

wide offices and not pay their share, |

and another candidate to do so. But

this is the. means that the. legislature

“has selected to pay and I:think there

is a box created about payirg for the .

: Democratic and Republican Primaries.

. Texas will urge in its reply brief that the in-

-tent and purpose of the Election Code Statutes

- are not. bad and how can Appéllee Say that. the

Texas Legislature and politicians would want

to discriminate against persons without wealth

in order to remain in office. It has long been

' the’ position of the Texas Attorney Genggal's -

- Office and Judges of Texas that "case is not -

eee tried under ‘the Federal Constitution.

This Defendant has been brought into this Court

- ‘under the state laws, under the State Constitution.

2: T took an oath to uphold this Constitution;

“* not the Federal Constitution but . the State Con-

_ stitution". Foregoing is an excerpt from Estes

Vv. Texas, 381 U.S. 536 (1965) and was a

statement of a Texas Judge who paid high filing

fees with the knowledge he would thereby eliminate

most opponents from the start. ,

Texas placed in the record as a stipulation |

(A. 116) a letter from A: -F. Edwards, Chairman,

Democratic Executive Committee of

30.

. sk, . °

“oe oy . P

‘ neces x 2S

_ ° :

Wichita Falls, Texae. ( A. 127). Mr, Edwards

taught government for 30 years hig been .

on the Wichita Falls Democratic Executive

Committee for 40 years, chairman for six

years. Mr. Edwards made the tolloame. 9 state-

ments in his letter: |

“For a. Joi time, I have fought he.

assessments for the primary elections = =—S

are. unduly heavy, and tend to discourage -

- -those who can't afford it from running |. <;

‘for office. * * * I have thought for ~

a long time that the rimaries shoul

be paid for as are the general electi | es

( by the State ), same election officials, |

for both primaries, giving the voter

whichever ballot he wants * * *,." -

Mr. Edwards, you are congratulated for your

candor. and honesty. Texas needs more politicians

of your caliber.

inl ll kr Lara R ae UAG GI th APUM AREA NE SPE 9

In order to keep the ‘soe 3 man" off of the

primary ballot in Texas, Appellants have ¢

alleged many state interests or justifications. ae

Thesé alleged state interests seem to be - © &

(1) to limit the size of primary ballots, ( 2 )..

to provide political: parties with a means of.

financing primary elections, ( 3 ) to keep tax-_

payers from paying for primary elections, .

' (4) to ensure that persons. are willing to | j

sacrifice financially to be primary candidates,

(5) to avoid voter confusion by controlling by

wealth the number of ‘people on the ballot,

(6) to ensure the candidates have a significant

financial. modicum of support, and ( 7) to” -

‘prevent. third political parties as " stability

of the governments ofthe English speaking

P “Aiuie ise aS ont ae ”

ny rt =i ORL A pa NO eae

CONRAD a

peoples of ‘this world is due primarily to the ,

fact that they have essentially * party system"

+ Texas ore pp. 17-30 ) -

_ ‘ Texas! points with pride to Articig

13,50 et seq., Texas Election Code, as~

* @ means by which a person can get on the

géneral ballot as an independent candidate .

These statutes provide for a nominating petition

from one per cent to three per cent and not

‘to exceed five hundred in local elections. This

_so called lenient means has not caused

voter confusion in Texas, because in Texas

independent candidatés do not win elections,

“Bo few persons file as independent candidates.

; Iv.

APPELLANT MARTINE DIES, JR.

PRESENTED AN ELECTION CODE

REPORT TO THE TEXAS LEGIS-

-. LATURE THAT IS INCONSISTENT

‘ ° WITH MANY CONTENTIONS IN:

THE TEXAS BRIEF FILED HEREIN.

Appellant. Dies is the Texas Secretary.

of State who is appointed by the Governor

and he acts as the chief election officer in

' Texas. Article 4, Section 21, 1 Vernon's Texas

Constitution 819. oe ae

.” Dies, as Texas Secretary of State,

presented proposed election law changes to the

62nd Texas Legislature on December 10, 1970.

This report was cited by the Court below —

(A. 151,158 ae ‘Part of the report is set

32.

. Most states charge: 2 percent or less of the

_ ‘nomination. When fewer candidates file for

forth in Appendix B. herein. mn the report,

Dies admits in effect that fitting fees assessed

in some Texas counties in primary etoctinns.

are exorbitant and recommends. primary =.

expenses be borne by the county ‘and state:

( ee this Brief, pp 60-61, 65 ’.

—

= Fee

a P

is ‘This report reflects that no other

state " with a similar population : “xe siaesd

the burden of holding and financing primary

elections upon the participating political

parties * * *", and, “* * * Texas has the _

highest primary filing fees in the nation. In —

fact, a survey of all of the states shows ab- :

solutély no state which has primary filing fees _

that even approach the levies in Texas.+* * * —

It should be noted that excluding Texas, 6

‘percent of an annual salary is apparently |

_ the -highest levy in the United States for pri-_ .

‘mary filing fees-for county and state officers. _

annual salary": (. Appendix B, this brief,

pp. 58-61 ~~ +). ‘The report shows that .

"District judges ff Tarrant County were a

assessed approximately $8,900 in 1970." This

figure represents about 30: percent of their

annual salary " and" Extremely’ high filing -

fees sometimes have~the effect of reducing

the number of candidates who will file for

office, there is less money to operate the

primaries. For instance, Harris County Demo- ©

cratic primaries in 1970 cost less than the

primaries in. 1968. Yet the.assessments to the

candidates: Sere higher because fewer candidates

filed for nomination " Appeniien this Brief -

pp 60- 61, 78 ).

; &

fw +

The above report of the Texas

‘Secretary of State is an admission by |

Appellants that the "Texas scheme for ing

_primary elections is unconstitutional under any.

“test. The Secretary of State did not tel~the—...

Texas Legislature ‘that the system held unconsti-

by the Court below was good, rather he said it

was bad. He never told the Texas Legislature.

that: it was needed to limit and control the ,

ballot_and to avoid voter confusi ion, but he did:

recommend "that Texas adopt procedures making

the operation of the primaries.a state and

county. responsibility. This will allow the state

and county government to share the cost of the

primaries" ( Appendix B, this Brief p.65 i.

The Secretary never said that state financial

primaries would..cause any of the problems

asserted in the Brief of Texas or that any

State interest would be served by the financing

of vaaatiaé by candidate assessments. .

The Attorney General of Texas, an *

elected-office subject to paying the $1,000

fee required by Article 13.15, Texas Election

Code, is the only person permitted under

~Texas-law. to represent Texas before this

Court. . Article 4, Section 22, 1 Texas Consti-.

tution Annotated. 821. The Texas Attorney |

General is completely independent of the _

governor and ‘secretary of state. Perhaps

this is the reason. that one.arm of Texas

+ government. tells. the Texas Legislature one

". “thing and another independent arm of Texas

tells this Court something else.

% a

+ oneal

Tle, |

v. .

_-THE SCHEME FOR FINANCING TEXAS

| ” PRIMARY ELECTIONS CONSTITUTES

. _ STATE ACTION. cr...

In NIXON v HERNDON, 272 U.S. 536

(1927 ) a Texas statutory classification that

prohibited negroes from participating in — -

Democratic party primary elections was held.

" to be unconstitutional under the Fourteenth

-' Amendment for. the same reason that.a denial

of a vote at a final election. ‘would. be unconsti=

tutional. Texas substituted a new statutory

‘gcheme permitting a party executive committee

_ to prescribe who shall vote or otherwise parti-

cipate in its primary election. The Texas

Democratic party thereupon adopted a white-

primary, tule. This..Court, speaking through .

Justice Cardozo, in NIXON v CONDON, 286

-U,S. 73 (1932 ) held that the Texas Demo- _

_eratic Executive Committee was subject to.

restraints of the C onstitution as representatives

of Texas and the ‘elimination of negroes from

Democratic Party Primary elections, was .an

invidious discrimination in vaotation of equal

protection of the law. | e

The aisitvidn ce case of SMITH Vv ALL-|

WRIGHT, 321 U.S. 649 ( 1944 ) held that a

primary election in Texas was per se an

integral part of the machinery for choosing

officials. Consequently the primary electoral

process is essentially a.state function. In* that

‘@ase Justice Reed wrote that "it may now be

taken as a postulate that the right to vote in:

such a primary for. the nomination of candi- .

” dates without discrimination by the State, like

35.

the right to vote in a general élection, is

a right secured by the Constitution " .

In SMITH v ALLWRIGHT, . supra,

Justice Reed described the financing of Texas

primary elections as follows:. |

" The plan of -the Texas primary

follows substantially that of Louisi-

ana, with the exception that in

Louisiangw. the. state pays the cost

of the primary while Texas assesses

the cost against candidates. In

‘numerous instances, the Texas

. gtatutes fix or limit the fees to be

charged. Whether paid directly

-by the. state ‘or. through state |

- requirements, it is state action

which impels. When primaries

become:a part of the machinery

for choosing officials, state and

Rational, as they have here, the

— sdme tests to determine the _

"ee character of discrimination as, _

| | abridgment should be applied to

_the primary as are sppliec to the

| general election "

The Texas election statutes held uncon-

stitutional by the Court below provide the scheme

for financing Texas primary elections as descri- .

bed ae Justice Reed in the SMITH case in 1944,

- Notwithstanding the foregoing. Appellants

in their brief at pages 9-10 request this:

Court to hold that filing fees and assessments -

paid through state requirements are not state

36.

action as a poor man "does not have to run in

a party primary’. This. ‘argument is wrong

and in fact has not been properly raised in

this Court.. ELMORE v RICE, 4 Cir.1947,

- 165 F.2d. 387; BUSKIN v BROWN, 4 Cir.

1949, 17 F,2d 391; TERRY v ADAMS, S45

U.S. 461 *( 1953 ). . .

‘In 1004,;.the Texas State Democratic _

Executive Committee issued a recommendation

to the focal party organization to the effect

that the party authorities in all primaries

permit white Democrats to participate .

who would be’ qualified voters. under the law +

at the succeeding general election. "The |

White Primary ", 8 Miss. Law J. 139. It was

not until 1952 in TERRY v ADAMS, 345 U.S.

461 that this Court put a complet end to |

White Primary Elections ‘in Texas. The Jay- \

bird Party Association.was organized in 1889.

It took 62 years to put an end to its Slacrimin-

ation. . ok

"Jained: H. . Booser. has Chowne that the

- direct primary was. first employed by sthe

Democratic Party in Crawford County, Penn-

‘Sylvania, in 1842"."'The Direct Primary in-

Idaho '" , Boyd A. Martin; Stanford: University

_ Press ( 1947) at page 10, call number 324.

237,M. 363 d, Texas fenacted its first primary .

lawon April 8; 1895 and it was known as the

_ Terrell Election Laws. = General: Laws of

_ Texas, Twenty-fourth Legislature ( 1895 )

chapter 46. It has now been 75*years that

wealth has.been required as a ‘condition to

candidacy in Texas. It is urged that this

Court put a final end to wealth discrimination

in Texas ‘primary elections now.

ey Po

_ are at issue herein. The Appellants are .

“TEXAS VIOLATED THE FIRST

AND FOURTEENTH AMEND-

’ MENTS BY MAKING WEALTH AN

‘ELECTORAL’ STANDARD FOR

. CANDIDATES AND VOTERS IN

is PRIMARY FLECTIONS.

The two c rrelative rights” of any us

person, to become a candidate in a primary

election and the right of voters to vote in

such elections - for whomsoever they choose,

here as repre entatives:of persons in Texas

who desire to [remove the state barrier of

wealth or affluence which restricts participa-

' ting in ‘the political process by. those voters

and candidates unable to pay from $50 to

‘ "$8,900 as ne sexs and assessments,

In HARPER v VIRGINIA BOARD OF

_ ELECTIONS, 383 U.S: 663 ( 1966 ) this

z Court in eure. down ib inceenoniin poll we,

said: ~*

git MWe have long Been mindful

that» ‘where fundamental rights’ . |

and liberties are asserted under >.

‘the Equal Protection Clause, ==. —..

classification which might invade’ -’

' or restrain them must be closely

scrutinized and carefully confined —

e {citation omitted]; * *: * the right

to vote is too precious, too funda-. —

mental to es burdened or _

“congiitioned. 383 U.S. Albee

ae ae

M LOL SG aE RL ODBEREL OL BENE ABE TDi

a ae > ‘ pr emar at ll Bd ° G . .

Once Texas granted the electorate the franchise ‘

“a ;

, and the right to be Candidates in pr i ee

elections, then classificationg may not be -. © 7

_- . drawn which are inconsistent with the First ieee: a

"and Fourteenth Amendments, and "voters —=s_ g

qualifications have no relation to ‘wealth nor. | {

“*. to paying or -not’ paying this or any other tas! oa

‘ HARPER | CASE, .383 U.S. at. 666. UNITED Mine ‘4

STATES v TEXAS, 252 F. Supp.234,252 . =-— Fs

' ( W.D.Tex.1966 ); UNITED STATES y > Sa

ALABAMA 252 F.Supp. 95 ( 1966 ). Texas ©

. revenue and are considered a tax. CAMPBELL

Ne vs. DAVENPORT, 5 Cir. 1966, 362 F.2d 624. |

Cf;-Waples ‘v. . Marrost, Texas Supreme Court 1916,

- _ 184 S.W. 184; holding that the taxing power of

(8 if Texas cannot be used to pay the expense of | i

. , Primary elections for such elections ‘do not x

serve " a public purpose " . : e

QQ ‘ Justice Douglas fells the true standard el |

_ for testing the Texas Scheme for financing ay

_ primary elections — he wrote in the HARPER 2

case that: : ° Ss

"But we “miuat. remember ee x

‘the interest of the State, when + . i

' it comes to voting, is. limited &

to the powet fo fix qualifications, as

Wealth, liké¢#ace; creed , or Ee -

color, is not germane to one's ao

, ability to participate intelligently - a

inthe electoral process. Lines a

drawn on the basis, of wealth or ete

“. . property, like those of race (citation &§

‘ omitted] are traditionally disfavored. ' BO Pa

ie 383 :U.S. at 668. _

o. : "

PC Pp mee ETI a ve La atti te

' Subsequent to- the HARPER case three

federal caurts have held a. requirement of ,

paying a filing fee to qualify as a candidate ©

' in the electoral process is unconstitutional -

| aS a-violation of Equal Protection. JENNESS -

_ wv. LITTLE,.N.D.Ga.1969, 306 F. Supp. 925;

‘GEORGIA SOCIALIST WORKING PARTY v.

os FORTSON ,N.D. Ga. 1970, 315 F.Supp 1035,

. : 1040,affirmed _ On other grounds JENNESS-

ve v. FORTSON, - 7. US. , 29 L.Ed. 2d 554.

\ Filing fees as requirement to run for office

‘have been held unconstitutional in BOLLINGER

Av. McLAUGHLIN, 22 S.D. 206, 116 N.W. 70

Bee: );. ADAIR v DREXEL, 74 Neb. 776, 105

174 ( 1905 ); KELSO v COOK 184 Ind.173,

110 'N. E. 987 ( 1916 );; LEDGERWOOD v PITTS,

122 Ténn. 570, 125 S. W. 1036 ( 1909 ),

. ta dees v FORTSON U.S... _, 29

L. Ed. 2d 554°-%<1971 ) prospective | candidates

and their voter-stpporters brought an action a

; based’ upon ‘the First™and Fourteenth Amend-

ment ta declare Georgia™taws that require.

° filing fees and a 5% nominat petition un-.

constitutiondl. The District Court~in the JENNESS +

‘case, GEORGIA SOCIALIST WORKERS PARTY

- v. FORTSON 315 F.Supp. 1035. ( 1970 ) held

‘that candidates and voters had ‘standing to.

bring the suit. This Court in the JENNESS

case decided the issues of the abridgement of

- . "fpeedom of speech and association guaranteed

to that candidate and his supporters ‘by the 6

First and Fourteenth* Amendment" and violation

of the "Fourteenth Amendment, by denying the

_’ non-party. candidate the equal protection. of the

—. law". It was held that 5%nominating petitions ~

was ‘sail: and the state did not appeal -

the district court's holding that filing fee re- <—

quirements of 5% of the annual salary operates

_ to-deny equal protection to prospective caridi- -

dates. It is now clear, in light of the JENNESS

case, that each appellee herein has _ ae

‘under the First and Fourteenth Amendment - ae

in regards to their rights to run for state © ~~

office and to vote in state elections. See ean

ANDERSON v MARTIN, 375 U.S. 399 ( 1964-) —

where a candidate’ in a school board election a

had standing under equal protection clause. &§

SNOWDEN v HUGHES, 321 U.S.1 ( 1944) is

dead in light: of the JENNESS Case RS : -

In TURNER v FOUCHE, 396 U.S. 346, } —

(1970), a clasg action by freeholders and non- — |

freeholders challenging the’ limitation of «|

schoolboard membership to freeholders as

a violation of. the Equal Protection Clause,

Justice Stewart wrote that "challenged classi- fre

fication rests on groynds’ wholly irrelevant to <

the achievement of a void state objection "and to

“appellants and the members of their class do |

have a federal constitutional right to be consi-

dered for public service without the burden of

_ invidious discrimination qualifications. The .

State may not deny. some the privit®ge of hold-

ing public office that it extends. to others on

the basis of distinctions that violate federal

: constitutional guarantees." Wealth is not a

"compelling" state interest: KRAMER: v UNI

_-FREE, SCHOOL DISTRICT, 395 U.S. 621 (1969 )

‘and CIPRIANO v- CITY OF HOUMA, 375.U.S. |

“701 C 1969 ). :

pL te OM OETES OMA:

41.

A state may not ates fiscal matters

to draw an invidious distinction between classes

of its citizens. SHAPIRO v THOMPSON, _

394 U.S. 618 (1969 ) and a characterization —

of voting or. candidacy for office as a "right"

or a "privilege". does not decide constitutional

rights. SHERBERT v. VERNER, 374 U.S.

398 ( 1963 ); GRAHAM v RICHARDSON _U.S.,

29 L. Ed. 2d. 534 €-10713: )

sae In BODDIE v CONNECTICUT, | decided

= March 2, 1971, U.S. _» due process required

4 “countervoiding " ‘state interest of overriding

significance". before’ a poor person is denied

_ access to a divorce court because he cannot

-pay a fee of $60. And a state's assertion

that a fee is necéssary as a cost recoupment:

has_ been. rejected. GRIFFIN.v ILLINOIS, 351 |

U.S. 12 ( 1956 ) and requiring indigents to

pay a filing fee before a writ of habeas corpus

could be considered , was invalid under the

Equal Protection Clause. SMITH v ‘BENNETT,

365 U.S. 708.

The state interest shown by. significant -

modicum of voter support by means of signa-

tures on a nominating petition, JENNESS v.

-FORTSON, _U.S._, 29L. Ed. 2d ‘554, 562

( 1971) .does not mean there is an important

state interest shown by requiring that primary.

candidates pay for the complete cost of the _

election when Texas assessments range from —

$50 to $8,900 andsome candidates merely pay

a small fixed fee and the fixed fee of others

does not go to finance the primary election at

all, -but rather finances the state political

executive committee. The payment of a $8, 900

42. _

assessment means that: the candidate is wealthy

or has ‘wealthy supporters whether they be ©

Texas voters, banks or a New York insurance

company. A candidate need not pay money to

obtain signatures as a form of support unless

-. some other statute requires a notary. fee for -

notaries signatures.

wae If this Court holds filing fecs per se

unconstitutional, the Appellees and ‘their class |

will be protected from: the type of State shenan-

igans (H. B. 5, supra, requires a notarized

petition signed by 10% of the voters and a>

pauper's oath) under which the affluent

' qualify for election through the easy route ~

- (for them ) of paying a filing fee while the

poor or not so poor will be required as a

condition of candidacy in the same primary

election to meet other, onerous, requirements.

The Texas 10% petition must be notarized

and. completed within 90 days with each: signer —

becoming ineligible Ae thereafter affiliate with ©

other parses.

. ‘In El Paso County in the last paiierelk

election 27,315 persons voted for democratic

governor. See Appendix. C herein for the

official vote for Texas governor in the 1970

General Election by counties. Therefore, a

petition for any country-wide race in El Paso

must contain 2, 732-notarized signatures to

qualify a poor candidate in the 1972 primary .

election and at a cost of $.50 for each oath

_.administered and the notary fees would be ©

_ $1,325.00 for such petition. Article 3945

V.A.T.S.; H.B. 5, supra. The 10% notarized -

petition resulting in a $1,325 cost is unconstitu- |

' tional. See EVANS v. CORNMAN, 398 U.S.

43.

oo eer woraly

¥°

419 ( 1970 ) ; -PHOENIX. ve KOLODZIEJSKL

-394°U,S. 204 ( 1970 ) on ks alt state

interest. | :

Padebrmore Texas law places an

arbitrary restriction upon independent candi-

dates in that they cannot obtain notarized

signatures on their petitions until the primary

-+ elections.are over and.no one voting in a

.. primary may sign the petition of an independent

' candidate... Article 13.50 et. sq. .Texas Eleetion —

Code. See WILLIAMS ve _ RHODES, 393 U. S.

23 ( es 33:

While this Court hepa not sit to decide

abstract. questions, it is also true. that the

law is not a game. . The. legal resources

available to. Appellees' class are “sorely. limited.

_ It would be equally unfortunate to dissipate

these resources and to have unsettled constitu-

tional questions raised here, thereby neces-

eee sitating additional legal action to obtain relief

- ‘for the 1972 primary elections. Therefore,

Appellee Pate and Guzman, et al, join with

the State in presenting H. B. 5, sypra, for

Constitunenel review by the Court. 7

. There seems to be’ no real issue ’ that:

Texas has created a classification that dis-

criminates by wealth in regard to primary

‘election. The real issue in whether that -

discrimination is justified by the State interest

advanced by way of argument. It has long been

argued that putting a price on the right to vote

is bad for both negro and white voters. “Political

_ machines for years have made a regular practice

‘of buying blocks of Poll Tax receipts for their

‘henchmen and.herding them in to yote the will.

44, . *

. ; :

t ‘ eo : : , ; oper

- Of the political boss." The Poll Tax, American

' Council on Public Affairs, 1942, p. 6, Call -

Number 336.25 Am 35p. The effect of high

filing fees is that many candidates are bought.

by wealth. ag : tutties Dex

The State 6f Arizona has not experienced

the evils raised. by Texas in their brief against

State financial primary elections. Article %;

Section 14 ‘of the Arizona Constitution reads

as follows: ) Se eal “3

. “No feé shall ever Be required

in order to have the name of

any candidate placed on the

official ballot for any election or

: primary.” ose

_ Arizona-does require a non-notarized nomin-

_ ating petition with voter signatures represent-

ing from one to five percent of the vote in the

last el@etion. Article 16-301 to 16-306, Arizona

Revised Statutes. \

CONCLUSION

ae. ‘It is respectfully submitted that the

three-judge district court below was correct

' -in its‘ conclusion that Texas Election Code -

Scheme for financing Primary Elections vio-

lated the First and Fourteenth Amendments

- and the judgment below sHould be affirmed.

Furthermore, the new Texas. legislation on

-primary elections ( H.B.5, Texas Brief pp.

33-42 ) violates the First and Fourteenth

Amendments and to that.end we urge this

_ Court to declare said Texas enactment uncon-

stitutional. 3 aoe : |

45.

. : ‘ a g

A EY Wee ts Ye tame 227. a % is oh ts h toalog Kinds Ment ihn ose ie

ee deck ML Re ee ES, Soy a ie pes its S87) ta

* . —— — <1

BULA | AWGN AOE Cea Pe ee ee yy Se Sper aN

Seokatinnd wha es

Respectfully submitted,

608 Towsley Cae .

. El Paso, Texas 79901

KENT MORRISON - #*

STUART R. ABELSON

First National Building

El Paso, Texas 79901

"PROOF OF SERVICE

: We, Joseph A. Calamia and John L.

Fashing;. two of the attorneys for the Appellees

Pate and Guzman, et al, herein, and both ©

members of the Bar of the Supreme Court of

the United States, do. hereby certify that on

the 20th day of August, 1971, we served copies

of the foregoing Appellees' Brief. on the following

.. attorneys of record for the appellants, to wit:

Pat Bailey, Assistant Attorney General,: P. O.

les F..Herring and John F.Morehead, 906

| Cjaries Capitol Station, Austin, Texas 78711,

rry Brooks Building, Austin, Texas 78701; .

Estil Vance, Jr., 1800 First National Bank Bldg., |

Fort Worth, ‘Texas 76102; Mark F. Howell, 508

‘Southwest National Bank Building, El Paso, Texas

= 79901,by Air Mail and First class postage prepaid.

Art. 13.07a Deposit to ‘accompany application for ~

__ place on ballot: : cen.

eat?

, Hr yy (1) Every candidate for public office who is subject

to assesament by the county executive committee for a

Portion of the expenses of holding the primary ele

tion, except candidates for the Legislature and forthe a

State Board of Education, shall pay to the county

chairman, at the time of filing his application for a

--pldee on the ballot, a deposit of fifty dollars. In ease

of district offices in districts containing more than one

county or part thereof, the candidate shall pay a de-

‘posit of fifty dollars to each county chairman with

‘whom his application is filed. A candidate for the Leg-

" ‘islature shall pay to the county chairman, at the time °

of filing his application, a deposit in the amount of the

_ maximum which he may. be assessed in that county, or —

the amount of the filing fee in that county in cases

where a fixed fee’is prescribed. A candidate for the

State Board of Education shall pay to each county —

' chairman, at the time of filing his-application, the quo-

tient obtained upon dividing fifty dollars by the num-

ber of counties in the district in which he is a candidate.

._ The fees and deposits accompanying the- applications

.Shall become a part of the primary fund. fe PEE

‘Article 18.08. % wo

- “(2) After the county executive committee makes the:

assessments provided for in Section 186 of this aode,"

it shall refund to each’ candidate within thirty days

thereafter the amount of the payment in excess of the .

assessment against the candidate if the deposit ex--

ceeds the assessment. If the deposit does not’ exeeed’

the assessment, the balance due on the assessinent shall

be paid as provided in Section 186."

47..

= Aen At 9, 0 Lg 80, 7,3,

off. Aug. 28, 1967. 7 >

_ 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, providing and distribut- _

ing all necessary poll books, blank stationery and

voting booths required, compensation of election of-

_ ficers and clerks, and ‘all other necessary expenses

| of holding the’ general primary and second primary

in such county and on the second Monday in Feb-

_ Yuary preceding each primary, shall apportion such

2 cost in such manner as in their judgment is just and

_ equitable among the various candidates for nomination ~

for district, county, and precinct offices only ‘as herein

defined, except the offices of Justice of the Court of

cation, and except the office of state senator and state

representative if the assessment or fee payable to the

county; chairman is fixed at a definite amount, but tak-

ing info account the assessments and filing feés re-

eamal from candidates for the Legislature and the

‘State Board of Education. Where a district office

covers more than one county, the assessment of such

candidate by the county shall be not more than a sum

which is the quotient of the amount.which he would

__. . be assessed if he represented only one county: deter-

mined by the formula used to assess county candidates,

' when divided by the number of counties in his district.

In‘making the assessment upon any candidate the'com-

mittee shall give due consideration to the importance,

- emolument, and term of office for which the nomination

is to be made. Within 24 hours after adjournment 'of

the — the chairman shall mail to, each. ae

48.

' Civil Appeals and member of the State Board of Edu-

: shall pay a filing fee of fifty dollars, which shall be

sigs hone i tani at oleae:

the amount of such expenses apportioned to him and

infirasing him thatthe dif@ereies hatwosn the.aepeent

of the assessment 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” ) 2

_ February ; and no person’s name shall be placed on the — a

ballot unless he pays the assessment within the pre = ss

scribed time. The notices shall be sent to the candidates

by registered or certified mail, and the chairman shall .

obtain a receipt for each letter, postmarked by the — .

post office at which the letter is mailed, as evidence of |

_ the'mailing, ne bl poseacen Cop Repel Tat Seen 7

_ of three months. - rset Soe

| (2) A candidate filing after the date of the i atresia

meeting shall not be required to accompany his ap- -

plication with the deposit provided for in Section 185a y

of this code,” but shall pay the full amount assessed 3

' against him by the county executive committee within

one week fromthe date on which his application is filed ; ,

provided, however, that where a fixed filing fee is re- oe

quired for an office included in this section, the amount ra

of the fee must accompany the application. | fa

‘ ° (8) It shall be sufficient to meet the requirements of

_ this law to mail by: registered or certified letter to the

chairman before the deadline herein provided, as shown

by the postmark on the letter, a money order, a certified

_ check, or a cashier’s check ; but it shall not be sufficient

to make the payment by any other type of mail reeds

iti is delivered before the deadline. Kae a

7) A candidate for the State Board of bo

Pstanain eee eee ent awe qomarcising the.

"hArticle 18.07a. , ety

49,

4 wit are cn adel aman oan:

vided for any office of two-year and fifteen per- ,

-eent- (15%) of the aggregate salary provided.

\. for any office of four-year terms, to Have their nanies, .

\ placed on the ballot in any primary election. Candi- |

dates. for the State Board of Education shall not be :

sequel seams tn, enone at Gen anc asta St Beatin.

186 of this. Code.’ ae :

: -. Notwithstanding other provisions of 1: the shen”

executive committee in any county which has a popu- ,

. lation of one million (1,000,000) or-more, according to.

‘the last, preceding Federal Census, may require candi-"

: dates for State Representative to pay an amount not -

exceeding Five Hundred Dollars ($500) to have their

names: placed upon the ballot in a. primary election.

‘A ieandidate for nomination for State Senator shall] ©

pay. the full amount of Oné Thousand Dollars ($1,000)""

-as filing fee for office of State Senator to have his name'':

3 -50. . -

The payment must accompany the applicationand

» plncsih spent Seettth a igtbieeeey sities

time he-files his application for a place on the ballot.

must be in the form of cash, money order, cashier’s

check or certified check. The application and payment

must be delivered to the proper party chairman or sec-, os

retary by the deadline for making application for a

place on the ballot, and it shall not be sufficient for

_ the application’ and payment to have been, mailed be-

fore the deadline unless they. are actually delivered. by

the deadline. After the county executive committee

‘makes the assessments as provided in Section 186 of

this Code, it shall refund to each candidate within |

thirty (30) days thereafter the amount of the payment.

in excess of the assessment against the candidate.

Notwithstanding other’ provisions of law, the county.

executive committee in any county which has a popu- ;

' lation of nine hundred thousand (900,000) to one mil-

lion (1,000,000), according to the last preceding Fed-

eral Census, shall require candidates for State Sena-

tor or State Representative to pay the amount of Three:

upon the ballot in a primary election.

- Notwithstanding other provisions of law, the odsintiy )

executive committee in any county which has a popu-

lation of six hundred fifty. thousand (650,000) to nine

hundred thousand (900,000), according to the last pre-

ceding Federal ‘shall require candidates for

State Senator pay the amount of One Thousand

Dollars ( ) and candidates for State Represent-

ative to pay the amount of Six Hundred Dollars ($600)

respectively to have their names placed upon the ballot

_in a primary election; however, if part-of such a coun- 3

ty is joined: to two (2) or more other counties to com- a

: a eee _

51.

st iit aniiilia daatiteied desta lien ob

senatorial district to pay the amount of Two Hun-

‘Fifty Dollars. ($250) to have their names placed

. ment taust accompany the application and must be in .

_ the form of ¢ash, money order, esshier’s check, or cer-

tified check and which shall in no event be refunded

=~ :\4-din whole or in part except in case of the death of the

| applicant before the primary election. Any person mak-

_. ing a refund or participating in making a refund in

o _» Violation of the provisions of this paragraph is guilty

‘=: Of a& misdemeanor and upori conviction is punishable

ef ' by imprisonment in the county jail for not more than

‘ninety. (90). Oe ee ne See mnere then Five

aa ee ee ee ee 3

In any State Representative District . consisting af.

the ballot in primary lection; and such pay--_

_ .

‘é.

\ lata (8) “arid not: more than ‘nine (9) counties, the |

cect chairmen of the county executive committees shall re-

~~. quire candidates for State Representative to pay an

"4 amount of ‘Twenty-five Dollars ($25) for each of the

’ counties in said Representative District, to have their

names placed upon the ballot in a primary election.

~ Amended by ‘Acts 1989, Gist 12g, 2275, Te

eff. Bept. 3; 1969...

oo - Art, 13.15. ‘Ying tonto crt oona ee

s Candidates for United States Rieiaaabun ans

_ who" are €andidates for stato offices to be voted upon.

; _ by thie qualified: voters of the whole state shall pay to.

| the:¢hairman of the state execitive committee $1,000, .

- . Candidates for Congresaman-at-large or for justice of

a the court of civil appeals shall pay to the chairman of

| * gallaty>Avcandidate who is required'to pay’a filing fee .

[Ae Ene ne Matindinpey ane:

ae Sore eS

the state executive committee five percent of one year’s |, pe

other sum to any other person or committee to have

~ his name placed on the ballot as such candidate. Pay-

ment of the fee herein required must be made at the =

time tho candidate files his application for a place on

- the ballot, and the name of no person who is required

+ to pay. a filing fee in any place or to the chairman of |

' » the state executive. committee shall .be placed on the

Se ee ae

these provisions.

Amended by Acts 1969, 61st Leg, p 266, ch. TB § 3, aD,

: eff. Sept: 1, 1969. ee ) \

~~ Art. 13.16. Piviiabits by candidates for state — q

‘or representative or dita

Subdivision 1. Except as otherwise aunt in this

code, no candidate for’nomination for state senator, :

shall be required to pay to the county executive com- 3

mittee to have his name placed on the pelmary ballot’

more than the following amounts :

1, One dollar per courity for counties Knawing a pop-

ulation of less than 5,000. ©

2. “Five dollars per county for counties having a pop-

aioten of 5,000 and not more than 10,000. .

3. Ten dollars per county for counties having a pop- -

plation of more than 10, 000 and less than 40,000. .

4. Fifty dollars per. counity for counties having 7

: population of 40,000 and not more than 125,000.

5. Seventy-five dollars per county for counties hav-

ing a population of m more than 125,000 and not more:

> than 200,000,

6. One Seno detain per county for counties s av. |

ings Hopelation of more than 200,000:

53. ‘2. me

1. ‘One hundred dollars per viiaatih for all senatorial .

3 ‘Aiataletidommpaeel 08 ho: mote and ‘0: less than two ~

counties, regardless of the population of such counties. _

The population in each case is to be determined by

the last preceding federal census. — :

. * Subdivision 2. Except as otherwise seeded § in this

code; each candidate for nomination for state repre-.

sentative shall pay a filing fee of $150. In districts

containing all or part of more than one county, the fil-

ing fee.shall be prorated among the counties compris-

' _ ing the district on the basis. of the percentage of the

. '. population of the district residing in each county, as

determined by the last preceding federal census. The :

- chairman of the state asian committee of each po-

litical party which is holding a primary election shall

compute the prorations and shall forward to the chair-: |

man of each county executive committee of that party

the pertinent information for his county not later than

| the first day of December preceding the election year.

. Subdivision 3. Where some other. section of this

code provides for an assessment or filing fee at variance. __

with this section, the Special provision of the other

_ section shall control. ’ ,

Amended by Acts 1969, dist bane p. 2662, ch. 878, § 32,

eff. sieabehs, 1969. .

84:

..* | APPENDIX "B"

OFFICE OF THE SECRETARY OF STATE

'@TMSTMOS IO IIGAT

| “WOITOUGOABMI .I

— PROPOSED ELECTION: LAW (CHANGES so.

° euciToOasa YRAMIAG Ss.

VOITAAT@IOGH AATOV-: .b|

9° o . - ¢

GAGvaMMOoa A AASHTO .b | a

PORT TR GUA &2 ND. LEGISLATURE

| OF THE STATE OF TEXAS

° . 7

Cc so

55, oa

8: . . .

9 TABLE OF CONTENTS

INTRQDUCTION

PRIMARY ELECTIONS

_ VOTER REGISTRATION

re)

_ OTHER RECOMMENDED

AMENDMENTS .

lartin Dies Jr: a, . ‘

RETARY OF STATE ; os ASST. SECRETARY OF STATE “

— STATE OF TEXAS

OFFICE OF THE SECRETARY OF STA

a AUSTIN, TEXAS 78711

To The 62nd Legislature:

¢ - \ , A Sma

_ Our state now ranks fourth in the nation in populgtion. This ~

growth has put great strains in our election procedures that once ;

' worked well in a rural state. During my tenure as Secretary of

‘State, I have observed areas of our present election process that

- are now failing to fulfill the-needs of the state. Also, some of

our present election laws have been challenged in the courts, If

the challedges are successful, many changes will have to:be made

by the 62nd Legislature as we will be unable to hold primary elec-

tions or r¢gister voters until the changes are adopted.

t :

* In this jeaane. I address myself to the areas that deserve inime-

. diate attention, primary elections and voter registration. As _

the chief-election officer of the State of Texas, I have made studies

of the present systém in this state and in many other states with .

comparable populations. The recommendations made. reflect pro-

cedures which.are now being used in other states with great effi-

ciency and accuracy. :

I believe Texas must soon adopt new procedures in regard to the.

operation of our primaries and the method of registering voters.

Hopefully, the information contained in this report will be of help

to the 62nd Legislature when it considers election iaw reform.

8 . ae

MARTIN DIES, JR..

Secretary of State

PRIMARY ELECTIONS - |

ap : AF,

The Texas primary election process is unique améng the major

states in the nation, A vast ‘majority of the states and all of the

Papeose etal that hold primaries nolan their primaries ina

. Manner similar to their general elections. This office did not en-

counter a single state witha similar population which Placed the

; burden of holding and: fiance primary elections upon the parti-

cipating political parties, . ee

However, the need for change in Texas’ primary system does |

not stem from the fact that Texas is the only state in the nation

utilizing party operated primaries. This office does not believe

that uniqueness is bad-or that popularity is necessarily good. The |

present Texas system has simply reached a crisis in its ‘operation

“that Cannot be cured by slightly altering eur present procedures.

_There are three factors that make — of future primaries

under our present system impractical if not. impossible. These |

factors are: pan Se the failure of the present system to pro-

vide adequate financing; the present — fees cannot be increaséd

to cover the need for\{unds; and the courts are-very likely to strike

down the entire primary assessment sewediliiiis: A discussion of

a a 58.

these factors follows.

(1). The Present method of pene! ar our primaries is no longer

provid ing inate funds for the proper operation of modern elections.

——

Counties with large populations have now fFeached their statu ry

limits on assessments. The Democratic County Cheicingg in ‘Harris

and Dallas counties have informed this office that sf Cannot finance

another primary with the existing limitations on assessments. (See

Appendix "c") qa some inatennes, we have already noted a tendency

for Some party county committees to attempt to reduce the number .

of voting boxes because of their inability to pay for additional staff |

and equipment. This is not a reflection upon’ those county commitiees,

but an indication that Present financing is inadequate,. Some primaries

held in counties where voting machines. are tormally used are being

held with peoer ballots because of the extra expense of voting ma-

chines. °

These changes are not healthy for Texas' elections. Combining

voting precincts sometimes means long lines at polling places which

discourage voters and alienate election workers. Voting on paper

“chines Sronen difficulty for the voter and for election officials. ‘Elec-

tion officials in highly populated votingprecincts simply cannot count.

‘

59.

mat:

the paper ballots in a reasonable time with reasonable accuracy

ewithout hiring extra employees which are costly and many times in-—

7 <= ~@ é = e

(2) Fili ing fees are already at maximum see. “The ——

of election costs could be relieved somewhat by removing the limi-

_ tations on assessments for candidates. ‘This avenue might be fea-

sible if it were not for the fact that at present Texas has the highest-

os filing fees in the nation. ‘In fact, a survey of all of the states

shows absolutely no state which has primary filing fees that even

approach the eines in Texas. Attached in Appeddix "A" isa sche-

° mis 5 8

dule of filing sei for county and state offices in other states. It

should be gated th that. Gaels Texas, 6 percent of an annual salary

* ia apparently the highest levy in the United States for primary filing

fees for courty and state ‘offices. Most’ states — 2 percent or

less of the annual salary." 3

Present assessments in Texas' metropolitan a areas aré now in,

_ the rangé at 20 to 30 percent of the annual salary of the. office. tbven

after distribution, of the surplus fund’, if any, many county and district

officials paid 20 percent or more of their. annual salary in filing fees.

District judges in Tarrant County were assessed approximately $8, 900

in 1970. This figure represents about 30 percent of their annual salary.

60,

Praising ‘the assessments would not solve the ‘problem.. The

expenses of a primary election vary proportionately with the num-

ber of voters. The number of candidates in. each race has relatively”

little effect on overall ‘dkpeniditess: Extremely high Hiling fees

sometimes have. the effect of reducing the umber” of candidates who .

will file for haan dinibei: ‘When fewer Sind iiitds file for office, a,” \

a a o

‘ there is less money | to 0 operate the primarits. For hnatanse. Harris i :

Cousay Democratic primaries in 1970: cost less than the primaries in .

1968. Yet the assessments to ‘the Candbiahan were ee because

fewer candidates filed for nomination. -

‘ * 24

(3) The most impor tant factor is that of the _questignable constitu-

tionality of Texas' timers assessment s system. ‘Suits were filed in.

i Federal District Courts prior to the 1970 primary sisaiinie claiming .

_ the fees made it impossible for a man of medest means to run for

county office. A three judge federal panel i in | Dallas ordered the names

of three candidates be placed on the ballot without paying the filinglees. —

‘The'court will soon deliver a final dpinion in the matter. Considering

previous federal c cases in other sales and the prior ruling of hie fed-" :

eral panel, it is most likely that the present filing fee system ——_— ~

held unconstitutional. Such a ruling will make it imposgibie to operate

another. general primacy under present lowe. However, the omer fac- :

PS %

° .

EE GST IE RST tata 8 4 4 ete

es - @

tors discussed also make it imperative that some different route be

‘bina in the financing and operation of Texas primaries. A short a

discussion of present primary sonaikin is helpful in understanding |

"what changes are needed. ! ~ | } | os

- The. Texas Primary Operation at Present

yr ( ’

; Presently the operations of the Texas primaries are almost en-

tirely candidate f inanced. “A statutory system of assessments allows

the tocal county committees to estimate the cost ofthe primaries and

assess most primary candidates somé share = the cost. Some offices

have fixed fees, but the candidates must eae all the election expenses ‘4

in, each county. Rural counties, where county salaries are low, assess.

between $400. 00 and — 00 for county offices. However, in metro~

politan areas it is st uncommon to find assessments of over $4, 000. 00

for some ‘offices. These figures. contrast with the fixed fee of $1, 000.00 —

for ah statewide offices including United States Senator..

The assessment system is also subject to criticism Sinctnive it is

‘ common for the original ‘sqeessmentq to be inflated. There are few

statutory Naiitations on the céunty committees and these erates are

" afeatitipbiy afraid’ of’not having enough moriey to pay for the primary.

—_— assessments must be partially refunded to the candidates later. ,

. J ° 4

e re e Ee : / .

“wiLe

= procedure consumes a considerable amount of the county Sammit-

tee's time because the pataeny- tant must be audited and all expeasia,.

" must be paid tediets the refunds can be made. Disagreements be-

tween y candidates and county committees are frequent, and many can-

didates feel that they were over- -assessed pecense of the large refunds

‘ which | in pees instances are not returned until months after the =.

_maries.

Finally, the party Cannot retain ahy of the money in. the: primary

fund. This practice leaves the local parties sirapped for operating

expenses. In many states this is not the case and those systems will

be discussed later.

Present Cost of Primaries

; oa ¢ .

‘the primaries. Attached in Appendix "B" is an abbreviated list of

county by county cost figures for the 1968 and 19m primaries. Since

some counties did not Feport, we have made some iidenetiae to ,

seach the total cost figures. From this study, w have concluded

dint hn tee primaries cost approximately $1,400, 000 in.1970. =

This figure does not include the cost of the. couhty clerks' time in

holding absentee voting. It does include both Democratic. and ahem:

63. ots ee

b = . , a < ‘ : , , ‘ —_

Cs; - re] ’ i

ae > . . al ’

lican a 968: figures, are incomplete, but it is esti-

" mated that the total aceite exceed $1, 600, 000.

$2. .° , a e - £

sonnel. The Republican party's expenses are not representative as

-The major cost of the primaries are voting equipment “{ per- —

they do ‘Adt hold primaries in all counties and they usually do not field

: : ie ” . « . ‘ ; We ,

. ° = r Q »”

a full slate of candidates in counties where primaries are held. Also

the party gets a large amount of volunteer help whith reduces its costs.

' The cost of the primaries are increased by the practice of holding

dual primaries. If the Republican party held primaries in all Texas

counties, there weld Ue a complete duplication of effort. in every elec-

tion precinct. As far as this office could determine, this situation

exists L no other state. This cost. in. manny and manpower is elimin-

ated in all other states om holding, a asim primary. ° A description

; : ong”

ofa ae ‘unitary prtaiony system will be discussed later’ in this re-

“port, It is enough to say that presently our primary i i is cost-

ing. more than: wasneanis _—e both parties are holding diections in .

the same precincts. of

“The,Problems of Partisan Primary Operations

ee the primary election operation isa completely partisan

_ operation. This factor may well have some good points, but it is not

e a 64

‘2

the optimum: haemo for serena < elections. ‘Practically, cies |

wee *

Spe ration places the responsibility for policing ‘the elections on the

snodidesiol the political patties. This procedure is an unnecessary

. "2% *, _ . : a , A *

burden on the parties. Presently any —_—— over. fhe: opera-

tions of the primaries automat ically creates ‘an said “party dispute

. @ e

and nny times causes unnecessary election contests. This prob-

lem is minimized in other states where the primaries are operated

by the state and county much as the general election is operated here.

4 : : ° » , .

For instance California, which operatts its primaries with members <q

of both parties represented, has not had an election fraud case in 25

years and. election contests.ate few. =i

Recommended Primary Procedures

“The eeetaes of State recommends that Texas adopt procedures

making the operation of the primaries a state and county responsibi- : :

lity. This will allow the state and. county scepeccmnméte to share the |

| cost of the primaries. cit _— led to a unitary primary system that

will eliminate duplication sad waste and it will mean basi€ally bi-

. partisan operation of the élections. This ‘should reduce election ir--

regularities ‘and restore the confidence of many voters in the primary

election system. Most importantly it will allow the legislature to

—

xe f P ; , VW .

set reasonable filing fees for all offices which will meet constitu-.

‘tional muster. 108 Pg et ee

_ 7 PG

Suggested Financing for Unitary System

In, most states the counties ‘bear the majority of the primary

.election cost. In Texas at present the counties pay all expenses of

_ the general electfn. There are, of course, no p filing fees for the, -

‘* general election in Texas so the county assumes the entire cost. In

studying other states' primaries, we have found that, in some in- °

stances, the county and state share the cost for primary elections.

Financing would come from: the county and state general funds to be

“partially offset = candidate filing ! fees which would be paid to the

, state e andyounty. “Below is a hypothetical unitary primary ow

"structure for Travis and El Paso Counties.

; SS a ; —

In the 1970 Democratic Primary, Travis County had 42 district

: 7 -2 ; aa

- and county candidates On the ballot that paid the assessments. These

assessments ranged froth $4, 860. 00 for district judge to $8. 00 for |

- the State Board of miawweitea, , Total assessments collected squalles

approximately $84,000.00, The actual expenses were $31, 000. 00.

The surplus was refunded to the candidates. (The expenses for Travis

66.

County are rather low begause of the use of arcat baliots. )

bl filing fees were ups ata maxifnum of $1, 000. 00 for aiatfot

; judges, $500. 00 for most county offices, and $200. be tor Tegisiative \

) ‘Democratic primary in most counties. ) .

: filing fees could rated Contribute one-third of the primary cost in

‘seats, the ‘county would’ have ‘received approximately $16, 000. 00 in

filing fees. If the total fees; were e used to offset primary expefses,

the vengned and state would iene to supply only $15, 000. 00 to pay for

the primaries in Travis County. (We use only Democratic figures

as a unitary primary shoud cost approximately the same as the ;

- El Paso. County, which has a similar population to Travis County,

mary. Using the same filing fee schedule, they — nope: beaxrascmen

approximately $20, 000. 00 in fees. The county and state would have

had to supply: ‘$2790. 0 00 to cover the cost in El Paso. In counties

that-use voting machines <a counties with ¢ a two party organization,

unitary’primary cost should exceed the rues tee party primary ~

figures by about 10%.

" From these éxamples, it is not difficult to predict that lowered

, most counties, Us this f the 1970 rimaries. would have

oq“

cost the combined state-and county governments approximately

eo 31, 100,000. . °

As stated before ‘the countiés could bear the total extra expense

‘of the election. This would mean that El Paso County would need to. rn |

~ ¢

* = a extra $30, 000. 00 every two Tees Harris a 8

probably need to budget. an extra: $125, 000. 00 every two yeers. Most

rural counties would fing it gectasary to increase budgets by only 4

few thousand dollars with expenses at present tevels.

Studies of other states: — that sai - per vote isa good -

“oe rd _ average cost per election, At present, Texas eleciions are ‘not

costing $1. 00 per vote. However, even if that esiwiccein reached,

the State's share of ine éiection cost woul not soon exceed two mila

lion dollars ($2, 000, 000) per’ general primary election. a

—-

ee cs If-the-state shared the expenses, it would most easily be done bys

reimbursing the county governments a fixed fee per voting ptsriast,

‘If a figure of $100. 00 per 2000 voters were used, the cost to the state

every two years would be" approximately. $550,000. ‘This amount

0 would reimburse the county tor approximately one-half (4) of the » addi-

i ean

tional expenses. of operating ine primaries. 4

: Ovettationsl Aspects of the Unitary Primary System

The unitary primary closely resembles the preeae election. The

elation officials in each precinct are appointed by the county election ;

board. The election judge. eas: alternate” are selected for ability

- and experience in holding elections. The clerks are aclected from

a list prepared by the respective eine In almost uaa instance

| _. the holding of the election will be a ‘hi-pertions omeet. As there will

be —_ one polling place and one set ot election officials per precinct,

. eae should be an ample supply of experienced election officials.

All voters in the samé precinct will vate in’ thie same location..

it: the precinet v uses sabbe ballots, the Democratic and Republican

ballots will be of différent colors. ‘The ballots, after ‘being’ voted,

——thay iy be placed in the same ballot box as the different color scheme

will allow easy identification during counting. The voter will simply,

| be asked in which primary he wishes to vote and. he will be given the

proper pa cats ;

In Precincts using voting machines, there are two different me-

——~theds- of voting. In some states, each precinct has at least two ma-

chines. One machine is used for Deieneveihe voters and the other

machine for Republican rotere: In California, both Democratic and

bgt A Le.

in whieh preety he wishes to vote ane the election judge simply

‘locks. out the baliot of the other party in this manner it is impes-.

E sible to vote in the Lee primary or in both primaries. This:

method is muon less expensive; especially if one party polls sig-

‘nificantly fewer parent than the other party.

—_——

g 3 3

Tabulation of votes becomes a bit more ogmblienter. °° votes

for both primaries are being ¢ counted.” However; this factor anne.

‘not t seem to create ‘undue difficulty and can be iniaiieaaenied for by |

adding an extratlerk in: precincts which have heavy furnouts in both

och. All other aspects of the present election procedures, can

be retained.. Party affiliation can be “determined at the polls as ‘is

= . \ now done. if one party has 110 candidates to file in the county, ‘the

eiection would be held ineapii as it is now.

: F # is

AN pant Financing Under a Rage riteeag kf System

Al mentioned earlier the present primary assessments cannot |

. —_

be d

uy the parties for any: purpose other than —" the pri-

maries. ‘This leaves the ‘party with no funds for other operations. In

many states primary filing fees are e ither totally or edbeed allo- ~

cated to the respective, political parties. in-Alabama, for instance,

_ the entire 2 percent (2%) fee is retained by the parties. In New Mexic:

aff

‘ : aes)

rs)

voting equipment such as machines or —ee ls a devices is

part of the primary fees « are allocated to. the parlies: aid the other

oats is used to partially offees pritiary election cost. This proce-

dure provides Jocat county — and “ae committees opera-

“ie,

_ ting” fonds. Also, these funds can be sinavesed to the Bartigs’ candi- “

dates in the November “general election. In Plorida, state law re-

& J

quires that one-half of the primary fund be allocated to local party

campaigns “in the general election. —_ oe?

| The: above described system has been approved by tnertéderal

courts. ° It is ane here because the change in the present puaers

system will deprive local — dolintatttons of some —m fends.

‘/ .

Wa ; Cost of Unitary. System .

- It should be = that the unitary primary a rome printary

election costs over the present dual primary system. The presént

system is relatively inexpensive ~. because of the absence of a

complete two party er operation and of the continued use of ae .

per ballots in most iieation: There is no doubt that an increase in

ett population = continued =— growth which requires modern |

_ going ‘to increase election costs. ‘The wsiteny primary system: is the

only answer to. these increasing financial problems.

ha ag

4i; «>

Actual election cost figures from other states are not particular-

ly helpful in determining cost as differing election procedures may

result in vastly different expenditures. Studies by this oes indicate 7

-that. the han operationa? ‘cost of a — primary system in n Texas

| will not be a great burden on the ‘state or counties. The cost fi igures

listed in Appendix "B" give some skiiadete as to present election

cost. The initial changeover to a unitary eystem could create some

extra expense. It appears, however, that most precincts Pree con-

vert with a minimum of expenses. Only in areas with bine outer

participation in both. primaries would: —— increase over, the

present cost of teecetd. primaries. Dus to ws voter finaout in

_ the Republican — in 1968 and 1970, it would seem that these

‘ primaries could nies been financed at a ievel.near the cost ‘of the ~~

Democratic oie. : 7 oS | :

: (Ye \ _

Statutory Changes Necessary for Unitary Primary Procedure

This office has reviewed the present statutes governing our pri-,

* maries. A majority of. the Articles in Chapter 13 of the present Code.

will, require either elimination or amendment. These laws deat -.

marily with the organization and financing.of the present printary

system. - A number of oer statutes will require changes. This of-

4 : : oe. a ty - ars

are

”

: fia af

fice is now in the Process of ‘identifying’ every statute _ relates to

“the party primaries. if: the court holds that the present system is

-invalid or if the legishature feels that the changes should be made in

‘any case, this’ office stands ready to provide specific suggestions oa

amendments to change the present ayetsm. SP ne

e '

Conclusion

° - "8

. The Secretary = State believes that a change in present primary

G-

operations are needed 1 regardless ‘of the outcome of wpe court cases,

Public confidence in the primary election process is imperative if

our representative form of government is to continue to ave the

support of all the people. The present procedures simply cannot

. perform adequately in today's Texas, much less in the future.

“

i) *

“wo.

“A

_=-. | Meeers

, ; 1968

Angelina ; . 8, 000,00

Aransas" Pa 1, 646 , 33

Armstrong’ hg * 680, 81

Atascosa 3,218.00 - .

Banderg - No Figures:

.. Bastrop . 8,427. 46

<-aylor. . . 1, 584,10

“Wee. 8 a 7,246, 36. -

Bell . 13, 297,60.

Bexar * | Ol, 447.15

Borden ,: 2 Eee - 1,680, 72°.

* Brazoria > = ‘ll, 423, 48

Brazos — 7,749, 38

‘Burnet ‘ : , 1, 938, 00

Calhoun =. . e. . « 4,190, 89

Callahan | . — «+. No Figures

‘Camp . » it: $, 017.45

ass . - - §, 052,39 |

CastrO° 0’ iy. No Figures -_

Coke nA an No Figures

Collin : _ 9,730, 03

Collingsworth * 1,958. 34

. Colorado -.Y 3, 909, 33

Comal +. 1% 3, 100. 3

Cooke 5, 427. 06.

Coryell - No Figures

Cottle . No Figures

Crane. : 1, 825. 35

Crockett . 1, 148. 87

- Dallas eS S 118,793. 20.

Dawson £8 “ey No Figures

Denttn 2 it 8,898.75 .

Dickens ee % - 1,294, 75

Dimmit (92+) at oO L 1,104:04

Donley — tg See ee 1, 621. 65

Duval | Mees eee, 3,188, 01

Ellis Ree er 7,620.45 |

Falls . “No Figures _.-

' Fannin St 4,098,00 —

Fayette ; ee 3,359.27 ..-

‘Fort Bend ee ". 6, 817. 88

Franklin >. $,616,12 .

‘Freestone 2, 992. 0g.

14,

. * _~

APPENDIX We

DEMOCRATIC PRIMARY ELECTION: 5X LENSES

ry 7 ‘ 1970 Se oo

6, 862. 00...

1,976.97 \.

814, 23

* 4, 182,.00

1,477, 13

3,008.47 .

2,450:04 |

_ 4,836.48 -

. 10, 372.94 .

“22! 388, 16

1,121. 92 ©

12,617.00

6,634.67

1, 344, 00

2, 893. 91.

2,322.77

4,357.17

.§, 091, 80 |

* "132. 47

Figures

1, 083.25

10, 687. 40

1, 832. 79

3, 124. 89

3, 809. 80 -

2, 998,19

7, 571. 17

2,230. 59

1, 621. 69

1, 463.67

616. 98

158867 .03 . -.

* 2,404. 71

"9, 518,15

1, 746, 01

1, 177,98

1, 287, 36

3,231.04

. 8,280.53 °°

2,935, 29

. 5240200.

~ 2,326, 97

852,11

5,990.53 -

* 2,505, 74 -

. 3,415, 09

Galveston

: arual

| piasnes \

Gaay .

\ Grayson

Grimes

Guadalupe

Hale

Hall

Mardeman

Hardin, +:

Harris

Hartley.

' Henderson

Hill « |)

‘Hockley

Hudspeth

-Hutchinsoa

Jacksen

- Jasper

Jeff Davis

Jim Hogg

Jim Wells ©

Jones

Karnes _

‘Kaufman

Kenedy

Kerr

Kimble

King

Knox

amb

Lampasas

LaSalle

Lavaca:

... Lee ,

> Liberty

Limestone

Lipscomb

Live Oak

Lubbock -

Lynn

. Marion:

Mason. .

Maverick

_, McCulloch

1968__

: 3G, Gi0, 38

1, 809, 46 -

2,075. 00

4 3, 500, 00.

* 20,010.00...

No Figures

2,580, 05

2,796. AT

1, 849, 92

1, 403, 48

No Figures

173,848, 00 :

1, 108, 00

3, 815.13. °°

6, 010, 43

3, 787. 48

~ 1,439, 00

5, 953. 6]

No Figures ©

- £5, 247. 81

627. 75

5, 779. 66

5,497. 68 —

Be ep B 14!

4, 879. 6S .

ry 087. 97

441. 63

3,534. 94

— 655.18

No Figures

2,552.30

3, 861.17

1,608, 00

1,325. 62

2, 447. 80

3, 491. 88

7,352.18

2, 725.90

*870. 32

" 3,577.16

17,158. 36.

Noe Figures

No Figures |

' No Figures

4,491, 52

> 2, 116, 96

Lae

— Ba, 78. oe

2,165

~ 464. a

3, 528. 41.

ai. 537,-61

1, 929, 31

1,979, 08.

3,225, 37°

986, 97

1, 288, 59

“12, 400.00.

162,.000.00 ©

1,126, 00

4,537, 04°

7, 425,00 —

2,422, 48

. 1,550, 87.

. 6,040; 35

6,040.52

- 4,266, 47

560, 33

“9,301. 95

7,979. 31

1, 899. 11

. > 3,146, 82 —

5, 341, 83

(274. 64.

3, 4a8. 44

532, 20 :

“ . §50..33

2,117. 83

2,101.16

1, 957,00.

1,538. 96

2, 860. 89

2;649.15

6, 314. 30

2,102. 36

913. 28

2, 060. 71.

11, 315. 26

1, 300, 09

_ 2,300, 00

15164.'24

5, 382. 00

2,117. 95

* .McLennan

Menard

Milam ,

- Mills *

Mitchell -

Montague

= Montgomery

Moore ~

Morris

Moticy

Nucces

Ochiltree

. Oldham

Parker

Parmer

Rains *=-

Randall

Reagan

Real cA,

Red River”

Robertson

Rockwall ~~

Runnels

Rusk

Sabine

San Augustine —

San Jatinto

San Saba _

Shackelford

Smith

- Somerville

Sterling

Sutton

-Tarrant

Taylor

Terry

Throckmorton

Tom Green

Travis

Tyler —

Upshur’

Upton

' Uvalde.

* Val Verde

Waller

1968 :

. 13,546.04 -

* . 921; 30°

6, 686..66 .

2,100.00 —

No Figures

3,588. 34

3,577.16

, 4,721, 13

No l*igures

479, 25

34, 6Q0. 00:

1, 242, 98

712, 75

4,677. 56

14 _ * 788. 30

1, 056, 81

4,587.57

No Figures

1,165. 00

4,200, 00

4,828, 96

2,099. 11

No Figures

1,348. 49

- 3,297.29 |

3, 461. 84 -

2, 856. 66

2° 634, 88

*1,041. 62

10,457, 94

No Figures

' 868, 00

457, 28

61, 825. 41

9,475.00 ~

4, 358, 33

1, 890. 87

. No Figures

No Figures

4, 482, 36

_ No Figures”

. 2,037.11

8, 16,19

3,444. 83

4, O11. 42

1w970 |

73, 574. 26

1, 694; 18

3,925. 86

977,52 .

2,699. 46

3,180, 27

2,060, 71 -

4,141, 43

2, 082.16.

464, 25 |

39,900, 00

- 1,470, 00°

996..78

4,393.77

1, 508. 15

987, 22

- 3,972, 09

ri be 598, 66

: 475, 00

3,158. 00

5,154, 65

1, 855. 76

2,041, 72

9,074, 55

3, 719. 05

2,747. 11

2, 408, 75

- , 2,781. 21.

1,197.65

13,598. 03

698, 47

...° 740, 00

381. 84

92,470. 43

* 5,295. 51

3,780, 08.

1, 700, 34°

6, 425, 76

- 30,866, 93

4, 412, 41

7,507. 10

2,491. 62

2,502.15

5, 496, 09

. 3,549. 60 .

Ward ° 7 \

4 Washington ;

Wheeler .

Wichita

Wilbarger

Williamson” o> oe » . ine,

W ilson : : . . gee . i=

Winkler -

Wise e .

Yoakum:

Young

Zapata

2. O08. 2

oi Pe

1968

4,950. 00°

2, 000,00.

No ligures

10, 587. 76

4,280. 48

5, 246.98

3,890.09

2, 444, 20

No Figures: -

2, 216. 33

" 3,070. 08

No Figures

1970 |

- —

4, 956.5

_ 4,700, 00

2, 297. 00

8, 420. 95

5,14]. 54

4,639. 98

. 3,109, 01 .

2,936. 98

2,718.17

2,020.13 |

“1, 638, 89

_ 2,183, 82

* a

al icsaatashs Cc

Election. Crimp

Due | ]

County Growth Puts Ceiling on Filing Fe ees

By TOM JOLNSON

Dallas County's ‘preliminary 1970 census

-" figure of more than a million people could

well put a serious crimp in future primary

elections, at least as far as moncy g0cs,

State law specifiés limits for filing -

_ fees which can be assessed candidates by

political parties in counties of more than

1,000,000 population — carrently only Har

- gis (Houston) and Dallas. —

This means, paradoxically, that Dallas

County political parties in 1972 primaries

will be prohibited from collecting assess-

ments as large as they could have been this

year.

Dallas County's 1960 gensus mark of”

« 951,000 put it in a statutory category in

which there were no limits on filing fees

Now, though, by virtue of eclipsing the

_ milnon figare an upper .limit will be

clamped on such fees.

“WE JUST CAN'T finance elections in

. Dailas County as we have in the past on .

such a system,” said Democratic County

Chairman Earl Luna. <

The Legislature has set fixed filing lees

. for all legislative and statewide offices.

But this year, for ‘example, in Dallas

County, other Democratic candidates were

assessed filing ices of 6 per cent of the

total salary of the offices ht.

In the case of a district judgeship, a

*. &year term with an annual salary of $28,-

000, the Democratic fee was $6,720.

For the U.S. Hoase of Representatives,

@ 2-year office with annual salary of $42,-

* $00, Democratic candidates had to put up

$5,100 to get their names on the ballot.

_ The statutory. limitation for counties

over a million breaks down tike this:

— For 4year termg filing fces Cannot

exceed 1S per cent of one year’s salary of

the office.

_— For 2year terms, ices cannot ex-

oe 10 pet cent of one year's salary.

’ PERHAPS SIGNIFICANTLY, the Re

an party of Dallas County this year

ae cd filing {ces exact'y in line we

the million-plus limitation.

But Luna pointed out that the hee

cratic party would have collected $42,500

less in fees this year from 17 district-level

200m had the new

primaries this spring cost the county par-

ty about $166,000, so a slash incurred by

the loss in fees from just the judgeships —

waidd be quite severe.

Finca filing fees in Dallas County

the OE it now stands would al-

oe; part collect $4,200 from 4-year

judgeships and $4,250 navel “congr:

candidates. .

Both figures are sighiticantty below

what the Democrats have been charging

such candidates.

With inflation pushing up the cost of

leasing voting machines and paying Salas:

ries for election workers already, what

will the million population limitation

mean to Dallas Democrats? =

“WE CAN DO ONE of three or four

things, as I see it,” Lana sole ba inter,

view..

“We can try: to get the teasers to

amend the statutes so that there would be

no limit on what we can assess.

“If the Legislature does nothing in this

regard,” Luna went on, “we'll have to-ei-

-* her cut the pay (currently $2an hour) of *

election workers, recruit volunteer work-

ers of simply put out our hand and ask

the public for donations.”

He said the cost of salaries for election

workers. was by faf the single largest cost '

- of holding Democratic primary elections

here, with the cost of renting voting ma-

chines the second costliest item.

But’ if Harris County has been_living

with the limitation, why can’t Dallas?

“Well,” Luna said, “Harris reaps. Aree

=to do some of the things I was ta

~ bout this year. They cut salary for elec-

tion workers back to $1.50 an hour and

ror ed ear hae aaidi aad

meet.”

GOP COUNTY “ QUAIRMAN Tom

‘Crouch has less of a headache with pri-

maries than Luna because the Republi-

cans traditionally field fewer candidates .

aad. fewer voters participate in the COP” .

primary.

> “All our inne workers right now

are volunteers, they work on a free ba

this

GOP primary cost in the neigh

name

SI you know a poing to have

only about 150 people voling on siection

day, it's not too hard to get volunteers. A

lot of them are women who know they'll

be able to keep on with their knitting

while they're conducting the election.

“But it becomes a much more difficult

“++ job if you know and they know that 1,000

- people will vote, and the workers wiil

have to put in a hard,” Ighour day,”

Crouch said. *

\ Both county chairmen agreed that lowe

eri

ing the voting age to 18 would add to

"their -problems, in that it’s a general rue

“that elections get more expensive in p:o

portion to the number of pcopie who Vole.

*COUNTY TAX ASSESSOR-Celiector

“Ben Gentle predicted last week ‘that tow.

ering the voting age .could sweli the num-

ber of ‘etigible voters in the county by

perhaps 100,000.

President Nixoa fas reportedly rot yet

“decided whether to sign a bill on his desk

that would lower the voting age to 18.

The Texas Constitution holds that no per-

__ sen under 21 can vote. =

* Luna said the aatural population ir-

crease -projecied for Dailas County wi.

make the voting lists get longer-and-loz¢-

er, regardless “of the voting age situation

He said the number of voting precircis

‘ in the county will continue to increase as

: Certain precincts get.over-populaiced.

The Texas Election Code says county

Commissioners must keep redrawing pre-

cinct lines * eve: lle fone Esai yee

So more than 2,000 voters

~ 00 if machines are ased).

e % x

APPENDIX "C">

FROM: MARTIN DIES, 3R., SECRETARY OF STATE —

; OF THE STATE OF TEXAS)

TEXAS OFFICIAL YOTE FOR GOVERNOR

- . G@ENERAL-ELECTION - NOVEMBER 3, 1970

’ 7 .

79. . a". s

Camp ' (1,494 881

80.

LEAL

1,380

fy, .

rape

—_

Peard :

ute

82.

Jacksen

83.

: .

; 9°

5 .

2 - -

) ied

Sutten o#864SF=s—i‘iéiéiS@V

Swisher ~ ‘1,879

Tarrant . 62,117

_ Tyaler . 10, 378

. Terrell 246.

Terry 2,029 .

Threckmorten 646

_ Titus £ -2,922

Tom Green .7,652

Travis. 34, 933

Trinity 1,179

Tyler . 1,798

Upshur — 3,238

-Upten . 718

Uvalde 1,985

Val Verde 2,919

Van ZAndt 3,080

Victoria 6,061

Walker 2,426

Waller 1,579

Ward 1,971

Washington 2,410

Webb . 6, 962 -

Wharton 3,938

‘Wheeler 1,060

(Wichita 16, 264

Wilbarger 2,764

Willacy _ 1, 964

Williamson 4,594

Wilson 2,135

Winkler 1,716

Wise 2,842

. Weed 2,761

Yoakum 1,123

Young _ - 2,714

Zapata 745

Zavala ~~ = 4,123.

1,197,726

1,428

392

472 |.

1,037,723

86.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.