Jurisdictional Statement — Kusper v. Pontikes

{

Supreme Court of the Gnited States

No. 761631

Steniey T. Kusper, Jr., et al.,

Appellents,

Ve

Harriet G. Ponrikes, ec al.

APPEAL from the Unired States District

Court for the Northern Dicetrict of Illinole,

The erotement of jurisdiction in thie case

having been submitted and considered by the Court,

probsble jurisdiction ie noted,

April 2, 1973

V1-163)

JUN 16

} MICHAEL RO

Se We 1 CHAEL RODAK,

Supreme Court of the Uuited States

Ocroser Term, 1971

No.

STANLEY T. KUSPER, JR., FRANCIS P. CANARY and MARIE

SUTHERS, as the Chicago Board of Election Commissioners,

Appellants,

vs.

HARRIET G. PONTIKES,

- Appellee,

‘and

DONNA KLAETSCH and PETER LOMBARDO,

Plaintiffs,

vs.

GRACE MARY STERN, County Clerk,

Defendant.

On Appeal From a Three-Judge District Court

Of The Northern District Of Illinois

JURISDICTIONAL STATEMENT

WILLIAM R,. MING, JR.

ALDUS S. MITCHELL

SOPHIA H. HALL

ANDREW M. RAUCCI

110, South Dearborn Street

. Chicago, Illinois 60603

(312) 372-1106

ATTORNEYS FOR. APPELLANTS

INDEX

PAGE

Opinion OO * sciciinccipireciee 2

Jurisdiction ; 2

Question UIE Hse enenerinernninnmnest a ; 3

Statutes Involved ........---------s-seeseesseese 3

Statement ... big acslensionbichcadimecuabiien 6

The Questions Presented Are Substantial .................... 9

Taste Or AUTHORITIES

Cases :

Anderson v. Martin, 375 U.S. 399, 84 S. Ct. 454

(1964) -.. 3

Dunn v. Blumstein, -..- US. ....., 92 S. Ct. 995

(1972) ...... 14

Faherty v. The Board of Election Commissioners

of the City of Chicago, 5 Ill. 2d 519, 126 N.E. 2d

235 (1955) . 8

Jackson v. Ogilvie, 401 U.S. 904, 91 S. Ct. 642

EAGT) eceensnnennnvesannsesinesnnesensanvnecnvennveennennnosonnccntveneseennes 12

Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970

(1971) 14

Lake Carriers’ Association, et al v. Ralph A. Mac-

_ Mullan, ...... Oy isis tec, Oe Owns , 40 L.W.

4569 (1972) 12

hn ee a eee Pe fe ee ef eo ee

‘eee * EGS EE AR EE,

ii

Lippitt v. Cipollone, -..... US. ....., 92 S. Ct. 729

(1972) ll

McDonald v. Board of Election Commissioners, 394

U.S. 802, 89 S. Ct. 1404 (1969) 1455

Moore v. Ogilvie, 394 U.S. 814, 89 S. Ct. 1493

(1969) 7 3

Ray v. Blair, 343 U.S. 214, 72S. Ct. 654 (1952) 12

Reetz v. Bozanich, 397 U.S. 82, 90 S. Ct. 788

(1970) 12

Rosario v. Rockefeller, ... F. 2d —.., 4 LW.

SODA (ark Chr, ROCK) anna reac inneenee. l

Rosario v. Rockefeller, -.... Ce cy, ols We Scns

40 L:W. 3572 (1972) .......... ‘iiss a

State of Oregon v. Mitchell, 400 U.S. 112, 91 8. Ct.

~ 260 (1970) ........ 11,12

Swift and Company v. Wickham, 382 U.S. 111, 86

S. Ct. 258 (1965) - : ll

Williams v. Rhodes, 393 U.S. 23, 89 S. Ct. 5 (1968)

siseseninienastlaanineacsinmninnniniiitanineieiaiidhndnisnianaiaiT 12, 14

Statutes:

TE, TES ckctcitewicel RRS TE 3

SS UE ee tc scanned natin: taitae ll

Ch. 46, Ill. Rev. Stats.

SEIT siccnisincncctceinwseriebcisincaanebaiaanmcen 4, 6, 7, 9,10

743(d) ........: Riisnevaniesietieiaiunaiacdionleiisaaneaid 4, 6, 7, 8, 9, 10, 15

FD a ccticcncceesitidlineaeenineenniiennn ae 5, 9,10

Miscellaneous :

Inaugural Addresses of the Presidents of the

United States From George Washington 1789

to Richard Milhous Nixon 1969, 9ist Congress,

Ist Session, House Document 91-142 (1969) ...... 13

¢

In THE

Supreme Court of the Ruited States

Octoser Term, 1971

No.

?

STANLEY T. KUSPER, JR., FRANCIS P. CANARY and MARIE

SUTHERS, as the Chicago Board of Election Commissioners,

Appellants,

vs.

HARRIET G. PONTIKES,

Appellee,

and

DONNA KLAETSCH and PETER LOMBARDO,

a Plaintiffs,

vs.

GRACE MARY STERN, County Clerk, :

Defendant.

On Appeal From a Three-Judge District Court

Of The Northern District Of Illinois

JURISDICTIONAL STATEMENT

Appellants appeal from the judgment of a three-judge

district court sitting in the Northern District of Illinois

entered on March 9, 1972, holding that Ill. Rev. Stats.

Pt te! Sg

ain is cor fil itt i itn a ls ala ial ean Maint ieee es a ait

oes

(1971),. Ch. 46, §7-43(d), is unconstitysional«

lants submit this Statement to show ty¢ the Supreme

Court of the United States has jurisdiction of this appeal

and that substantial questions are PreStnted.

Appel.

OPINION BELOW.

A copy of the opinions of the distr.

ict court ar

tached hereto as Appendix A. =e

JURISDICTION.

The suit was brought by appellee

§§ 1343 and 2281, and 42 U.S.C. § et cen

pellants from barring appellee from a in the Demo.

cratic primary on March 21, 1972, in the 50th Ward,

36th Precinct of the City of Chicago. Gr March 9, 1972

a three-judge district court with one judge Senniite

ruled that Ill. Rev. Stats. (1971), Ch. 4¢ §7-43(d) was

unconstitutional and enjoined appellant . from enforcing

it. A copy of the Court’s order is attach + 1 ato marked

Appeadix B. A notice of appeal was fig in the district

court on April 17, 1972. A copy of that mation is aitedel

hereto marked Appendix C. The jurisd: tion of the Su-

preme Court to review this decision by, direct appeal is

() The opinion of the district court recites AN

solidates two actions . . .’’ Both actions, there that “‘This case con- |

in the caption and in the Notice of Appeal. fore, are referred to

trict Court for the Northern District of Ilinoi 2 Clerk of the Dis

sel for appellants, however, that there was no ¢% has informed coun-

two actions. consolidation of thes

-_ ~

— Gj

conferred by 28 U.S.C. § 1253. The following decisions :

sustain the jurisdiction of the Supreme Court to review

the judgment on direct appeal in this case: Moore v. i

Ogilvie, 394 U.S. 814, 89 S. Ct. 1493 (1969); and Ander-

son v. Martin, 375 U.S. 399, 84 8. Ct. 454 (1964).

QUESTION PRESENTED.

Where the State of Illinois prescribed regulations for

party primaries, including qualifications of primary vot-

ers, did a three-judge district court err in holding un-

constitutional, and in enjoining enforcement of, a sub-

section of the statutes prescribing one of the qualifica-

tions for primary voters at the suit of a single voter,

to the harm and detriment of hundreds of thousands of

Illinois voters, though the state courts of Illinois had

never construed the statutory provisions involved as the

district court did?

07 PRR gO rN gy Str as

STATUTES INVOLVED.

Ch. 46, Ill. Rev. Stat. (1971), §§7-48 and 7-44 (Vol. 2,

p. 107) provide:

Qualifications of Voters—Regulations Applicable to Pri-

mary Bfections—Registration Required.

§ 7-43. Every person having resided in this State 6

months and in the precinct 30 days next preceding any

primary therein who shall be a citizen of the United

States above the age of 21 years, shall be entitled to

vote at such primary.

a

The following regulations shall be applicable to pri-

maries:

No person shall be entitled to vote at a primary:

(a) Unless he-declares his party affiliations as po

quired by this Article;

(b) Who shall have signed the petition for nomina.

tion of a candidate of any party with which he does not

affiliate, when such candidate is to be voted for at the

primary ;

(c) Who shall have signed the nominating papers of

an independent candidate for any office for which office

candidates for nomination are to be voted for at such

primary; or

(d) If he has ‘voted at a primary held under this

Article 7 of another political party within a period of

23 calendar months next preceding the calendar month

in which such primary is held: Provided, participation

by a primary elector in a primary of a political party

which, under the provisions of Section 7-2 of this Article,

is a political party within a city, village or incorporated

town or town only and entitled hereunder to make nomi-

nations of candidates for city, village or, incorporated

town or town offices only, and for no other office or

offices, shall not disqualify such primary elector from

participating in other primaries of his party: And, pro-

vided, that no qualified voter shall be precluded from

participating in the primary of any purely city, village

or incorporated town or town political party under the

provisions of Section 7-2 of this Article by reason of

such voter having voted at the primary of another politi-

cal party within a period of 23 calendar months next

preceding the calendar month in which he seeks to par-

ticipate is held.

——

a

(e) In cities, villages and incorporated towns having a.

poard of election commissioners only voters registered

as provided by Article 6 of this Act shall be entitled to

vote at such primary.

(f) No person shall be entitled to vote at a primary

unless he is registered under the provisions of Article

4,5 or 6 of this Act, when his registration is required

by any of said Articles to entitle him to vote at the

election with reference to which the primary is held.

[Amended by Public Act 77-1653, effective September

7, 1971.]

Voter—Party Affiliation, etc.

§ 744. Any person desiring to vote at a primary shall

state his name, residence and party affiliation to the pri-

mary judges, one of whom shall thereupon announce the

same in a distinct tone of voice, sufficiently loud to be

heard by all persons in the polling place. When Article

4,5 or 6 is applicable the Certificate of Registered Voter

therein prescribed shall be made and signed and the of-

ficial poll record shall be made. If the person desiring

to vote is not challenged, one of the primary judges

shall give to him one, and only one, primary ballot of

the political party with which he declares himself af-

filiated, on the back of which such primary judge shall

‘endorse his initials in such manner that they may be

seen when the primary ballot is properly folded. If -the

person desiring to vote is challenged he shall not re-

ceive a primary ballot from the primary judges until

he shall have established his right to vote as herein pro-

vided. No person who refuses to state his party affiliation

shall be allowed to vote at a primary.

EERE NDI 8

.

=

RAPS REEDED OA 5 eet oe I

sill ie

STATEMENT.

On or about September 28, J9#1, appellee, Harriet 6.

Pontikes, filed a complaint in the District Court for the

Northern District of Lllinois, seeking to enjoin appellees

from enforcing as to her certain provisions of the Illinois

Election Code prescribing the qualifications for voters at

Illinois primary elections. Appellee specifically charged

that §§7-43(a) and (d) were unconstitutional. She alleged

that she had voted 7 the primary of the Republican party

in the primary held on February 23, 1971, which obviously

was less than “23 calendar months” prior to the primary

scheduled for March 21, 1972, and asked that appellants

be restrained from enforcing those statutory provisions to

bar her from voting in the Democratic primary scheduled

to be held on March 21, 1972.

In fact, the primary held on February 23, 1971, was

a municipal primary involving only nominations for the

offices of mayor, city clerk, and city treasurer, of the City

of Chicago. The primary scheduled to be held on Mareh

21, 1972, in contrast, was a primary of the kind generally

held in Illinois prior to a general election and included

nominations for governor, United States senator, congress-

men in each Illinois congressional district, a full slate of

county officers in Cook County, members of both houses of

the state legislature, and elections of delegates and alter-

nates to the national nominating conventions of both par-

ties, as well as election of other political party functionaries

including ward committeemen of the City of Chicago.

Under the provisions of the Election Code of Illinois,

such elections are conducted by the appellees as the Board

sinlinin

of Election Commissioners of the City of Chicago, herein-

after sometimes referred to as the Board, throughout the

City of Chicago and in four adjacent suburban towns, to

wit, Berwyn, Cicero, Lyons and Stickney.

There were no allegations in the Pontikes complaint in-

dicating that this was a “class action” within the meaning

of Rule 23 of the Federal Rules of Civil Procedure and the

requisite findings with respect to such actions were neither

sought nor made in the district court.

The cause was initially assigned to Judge Abraham L.

Marovitz, one of the district judges in the Northern Dis-

trict of Illinois. On motion of appellee and over the objec-

tion of the appellants, who contended that the cause did

not raise a sufficiently substantial federal question to war-

rant it, a three-judge district court was convoked. Appel-

lants filed an answer denying the material allegations of

the complaint. In conjunction with a similar action filed in

the same district court against the county clerk of Lake

County, Illinois, the county adjoining Cook County on the

north, the three-judge court considered plaintiff’s motion

for summary judgment. The court upheld the constitution-

ality of the requirement of §7-43(a) that:

“No person shall be entitled to vote at a primary:

(a) unless he deelares his party affiliation as required

by this article; .. .” (See §7-44, supra).

The court, however, with Judge Marovitz dissenting, con-

cluded that §7-43(d) was unconstitutional and enjoined ap-

jellants from enforcing its provisions.

The opinion of the three-judge court was not limited to

the prayer of the complaint which involved only the ap-

pellee, Harriet Pontikes. As a result, in the City of Chi-

‘ails

cago and the suburban towns under the jurisdiction of the

Board, the provisions of §7-43(d) were not enforced in the

primary held on March 21, 1972.

No Illinois court had ever squarely considered the ques.

tion as to whether the 23-month provision applied to a pri-

mary preceding a general election involving state- and

county-wide officers if the next preceding primary within

the 23-month period had been a local municipal primary, In

Faherty v. The Board of Election Commissioners of the

City of Chicago, 5 Ill. 2d 519, 126 N.E. 2d 235 (1955), the

Supreme Court of Illinois held that neither the Republican

nor the Democratic Party was a political party “within a

city ... only” within the meaning of §7-43(d) because both

of those parties are state-wide and county-wide political

parties. Therefore, the court concluded that one who voted

in a major party primary conducted on a state-wide basis

was barred from participating in a municipal primary of

another party within the 23-month period.

Whether the court would construe either section as re.

quiring the converse, however, namely that voting in a

purely municipal primary within the 23-month period would

bar voting in the primary of the other major party, is not

clear either from the decision in the Faherty case or the

Janguage of the statute. Accordingly, appellants urged on

the three-judge court that this was a proper case for ap-

plication of the doctrine of abstention pending construc-

tion of the Illinois statute by the Illinois courts. The three-

judge court refused so to abstain from decision of the fed-

-eral constitutional question though obviously if the stat-

ute were construed so as not to bar appellee from voting

in the March 21, 1972, primary, there would have been no

federal question.

This question of statutory construction is highly mate-

ria) in view of the fact that the last state-wide primary in

Illinois before March 21, 1972, had been held on March 17,

1970, more than 23 months earlier.

As a result of the publicity attendant on the district

court’s injunction restraining enforcement of §7-43(d),

thousands of persons who had formerly voted in Republican

primaries voted in the Democratic primary on March 21,

1972. There was no real contest for nomination for any

_ major office in the Republican primary. There were sev-

eral such contests in the Democratic primary, however, so

that the nominations in the Democratic primary may have

been materially affected by these “cross-overs.”

In terms, the injunction is final. Thus, only this appeal

is available to test the propriety of the action of the three-

judge court.

THE QUESTIONS PRESENTED

ARE SUBSTANTIAL.

This is the case of a single individual who claimed that

she would be barred under the provisions of Ill. Rev. Stats.

(1971), Ch. 46, §7-43(d), from voting in the Democratic

primary on March 21, 1972, because she had voted in the

Republican municipal primary in Chicago on February 23,

197i. She claimed that this violated her federal constitu-

tional rights. She also charged that the provisions of §§7-

43(a) and 7-44 were unconstitutional in requiring her to

disclose the party primary in which she chose to. vote be-

cause they violated her right of privacy. The three-judge

ictal

district court unanimously rejected the attack on §§7-43(a) ’

and 7-44. A majority of the court, however, construed {7.

43(d) as producing the result appellee complained of, and

ruled the section unconstitutional and enjoined its enforee.

ment on the theory that the state’s interest in “maintaining

party stability do not‘apply when national, state, and local

contests are considered together.”

The court ruled that the statute, as it construed it, was

unconstitutional and enjoined the enforcement of the stat.

ute throughout the City of Chicago, and the suburban

towns under the jurisdiction of the Board, and Lake Cou.

ty, Illinois. The effect of the decision, of course, went far

beyond the claims of the plaintiff. Indeed, it is the decision

of the majority of the three-judge court which raises the

substantial federal question, not the section of the Illinois

statute attacked by plaintiff.

As a matter of fact, the provision of the Illinois statute

held unconstitutional, even if properly construed by the

majority of the three-judge court, did no more than at-

tempt to balance competing rights of political association

of persons with continuing political views, principles, and

aspirations, with the rights of those desiring to change

party affiliation. That is to say, in prescribing. the qualifi-

cations of voters in party primaries, the Illinois legislature

has attempted to protect the rights of all of its citizens

who might desire to participate in party primaries. There

is no evidence that the so-called 23-month qualification is

an unreasonable method of protecting the rights of both

those who wish to continue to vote in the primaries of the

party of their choice and those who wish to shift from one

party primary to another.

<M

_———

pa Tee

Interestingly, general county and state-wide elections in

Illinois are held at two-year intervals. Thus, under the “23-

month rule” any voter would be free to shift’*from one pri-

mary to another at each scheduled primary for a general

election. A revised Illinois Election Code now pending be-

fore the legislature, having already passed the Senate,

formalizes this arrangement to an even greater extent by

requiring that all elections must be held in either May or

November, and if the.election is to be held in November

the primary must be held in May of the same year. That :

proposed election code contains the 23-month qualification —

also. Thus this appeal involves a constitutional question ~

of considerable moment to the Illinois legislature as -it

considers the proposed revised election code which is the eS

product of nearly seven years of effort and study of a com- f

t

;

f

&

:

payee

mitee composed of members of the legislature and other

interested citizens, one of whom is Chairman of the Board

of Election Commissioners of the City of Chicago.

Certainly there is a serious question as to whether the é

complaint here raised a sufficiently substantial federal f

question to warrant convocation of a three-judge court. i

Under the authority of 28 U.S.C. §2281, no three-judge

court shall be convoked unless there is a showing that there

isa substantial federal question and that issue can be con- ;

sidered even after the court has been convoked. Swift and .

Company v. Wickham, 382 U.S.-111, 86 8S. Ct. 258 (1965). ;

We respectfully submit that the applicable precedents in

this Court demofistrate that the desire of Mrs. Pontikes

to vote in the Democratic primary did not present a “sub-

stantial federal question.” See Lippitt y. Cipollone, ......

US. ......, 92 S. Ct. 729 (1972); State of Oregon v. Mitchell,

400 U.S. 112, 91S. Ct. 260 (1970); and Rosario vy. Rocke-

RE —————- = =

a went. ia eek Atcists

feet, i Be BE ne , 40 L.W. 2691 (2nd Cir., 1972), ¢

Williams v. Rhodes, 393 U.S. 23, 89 S. Ct. 5 (1968).

Similarly, the applicable precedents of this Court with

respect to desirable state and federal relationships so far

as the federal judiciary are concerned, frequently re.

ferred to as the “abstention” doctrine, would have ap

peared to have required the three-judge court to with.

hold its hand. See Lake Carriers’ Association, et al. y,

Ralph A. MacMullan, ...... Stee ek S.-C, @

L.W. 4569, 4573 (1972); ‘aves v. Ogilvie, 401 US.

904, 91 S. Ct. 642 (1971); and Reetz v. Bozanich, 397 US.

82, 90 S. Ct. 788 (1970).

We submit that the opinion of the majority of the

three-judge court unwarrantedly interferes with the pov.

er of the State of Illinois to conduct its elections, See

State of Oregon v. Mitchell, 400 U.S. 112, 91 S. Ct. 260

(1970). Indeed the power of the states to regulate pri-

maries has long been recognized by this Court. See

Ray v. Blair, 343 U.S. 214, 72 S. Ct. 654 (1952). We

likewise submit that the opinion of the majority unwar-

rantedly interferes with the rights of political asso-

ciation of hundreds of thousands of persons.

Appellants cannot ignore the fact that this Court has ”

already granted a petition for certiorari in Rosario y.

Rockefeller, _.. U.S. ..:, .... S. Ct. ...., 40 L.W. 3579. The New

York statute involved in that case and the Illinois stat-

ute involved in the instant case are substantially differ-

ent. Each, however, involves a qualification prerequisite

to participation in party primaries. In the Rosario case

the Court of Appeals for the Second Circuit found a

“compelling state interest” in preserving and prutecting

|

the integrity of the political party system. So also did

the dissenting judge in the imstant case. We endorse

their views, In any event the state’s interest in the

political party system demonstrates that this case now

involves a substantia! question.

ee a

a,

The party system in the United States has evolved

from the very beginnings of this country. As President

Calvin Coolidge said in his inaugural address on March

4, 1925, in pertinent part:

«Since its very outset, it has been found neces-

sary to conduct our Government, by means of politi-

eal parties. That system would not have survived

from generation to generation if it had not been

fundamentally sound and provided the best instru-

mentalities for the most complete expression of the

popular will. It is not necessary to claim that it has

always worked perfectly. It is enough to know that

nothing better has been devised. No one would deny

that there should be full and free expression and

an opportunity for independence of action within

the party. There is,no salvation in a narrow and

bigoted partisanship. But if there is to be responsible

party government, the party label must be some-

thing more than a mere device for Securing office.

Unless those who are elected under the same party

designation are willing to assume sufficient responsi-

bility and exhibit sufficient loyalty and coherence,

so that they can cooperate with each other in the

support of the broad general principles, of the pariv

platform, the election is merely’ a mockery, no deci-

sion is made at the polls, and there is no representa-

tion of the popular will. Common honesty and good

faith with the people who support a party at the

polls require that party, when it enters office, to

assume the control of that portion of the Govern,

F

J

4

4

3

;

>

ment to which it has been elected. Any other course

is bad faith and a violation of the party pledges.”

[Inaugural Addresses of the Presidents of the United

States from George Washington 1789 to Richard

Milhous Nixon 1969, 91st Congress, Ist Session,

House Document 91-142 (1969)].

Continued maintenance of party stability is equally

—14—

important today.

We submit that the constitutional standard for review

of state primary elections is of major importance to the

each of the several states. We respectfully submit, how-

ever, that the standards discussed in Dunn v. Blumstein, ...

USS. ...., 92 S. Ct. 995 (1972), have no application here.

The instant case is not a simple case of interference with,

or denial of, the right of an individual to participate in

the political process. In the instant case, the state has

attempted to balance the competing interests of millions

of persons who seek to participate in the political process.

As this Court has pointed out in Jenness v. Fortson, 48

US. 431, 442, 91 S. Ct. 1970 (1971), a state has an interest,

if not a duty, to protect the integrity of its political pro-

cesses from frivolous or fraudulent candidacies.

By its regulation of party primaries, the Illinois legis-

lature has attempted to do exactly that. Granted that the

legislature may not impose restrictions or requirements

based on race, economic affluence, or the popularity of

one’s political views. See McDonald v. Board of Election

Commissioners, 394 U.S. 802, 807, 89 S. Ct. 1404, 1407

(1969); and Williams v. Rhodes, 393 U.S. 23, 33, 89'S. Ct

5, 11 (1968). The statute involved in the instant case has

no such infirmity. Indeed, as consideration of the whole of

the Illinois system of regulation of conduct of primary

it eee er ee. peceeietinr seman oe

elections demonstrates, the Illinois legislature has ende-

avored to bolster and support the party system while pro-

tecting at the same time the right to organize new parties

or for candidates to present themselves as independents.

§7-43(d) is an integral part of that primary regulatory sys-

tem. Orderly consideration of competing constitutional

rights would appear to dictate that such a statute be tested

i the familiar standard of reasonableness, rather

than the standard of “compelling state interest” which has

been applied to statutes which do no more than limit the

rights of individuals to vote. See McDonald v, The Board

of Election Commissioners, supra.

In any event, the proper standard to be applied to re-

view of state primary regulations is itself a matter of sub-

stantial importance not only to the states directly involved,

ie., Illinois and New York at the moment, but also to the

political framework of the nation.

Respectfully submitted,

WILLIAM R. MING, JR.

ALDUS S. MITCHELL

SOPHIA H. HALL

ANDREW M. RAUCCI

110 South Dearborn Street

Chicago, Illinois 60603

(312) 872-1106

ATTORNEYS FOR APPELLANTS

x i i ei aaa

“anne

a | ee

‘APPENDIX A

* IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

a EASTERN DIVISION

oe

Harriet G. PontIKEs, )

Plaintiff,

Vs.

Srantey T. Kusper, Jr., Francis P. } No. 71 C 2363

Canary, and Marie Sutuers, as The

Chicago Board of Election Commis-

sioners,

Defendants. J

~ Doryxa Kiartscn and 7

Peter LoMBARDO,

Plaintiffs,

vs. > No. 71 C 2415

Grace Mary Stern, County Clerk,

Defendant. J

Before SWYGERT, Chief Circuit Judge, MAROVITZ

and BAUER, District Judges.

SWYGERT, Chief Judge. This case consolidates two ac-

tions, each of which attacks the constitutionality of sec-

tions 7-43(a), (d), and 7-44 of Chapter 46, Ill. Rev. Stat. .

Sections 7-43(a) and 7-44 condition voting in any primary

upon a public declaration of party affiliation. Section 7-44

prohibits voting in the primary of one party if the voter

—2a—

has voted in the primary of another party within the pre. }

ceding twenty-three months.) Plaintiffs seek declaratory

and injunctive relief under 28 U.S.C. §§1348, 2281 and 42

U.S.C. §1983.

The parties bringing the action are qualified Chicago

and Lake County voters (plaintiffs Pontikes and Lombardo,

respectively) who had voted in one party’s primary in Feb. |

ruary 1971 and who now seek to vote in a different party's |

primary in March 1972, and a Lake County voter (plaintiff

Klaetsch) who, though eligible to vote in any primary, chal-

lenges the restrictions that will attend her voting in March.

Defendants are those officials responsible for the conduet

of primary and general elections in each area, the Commis-

sioners of the Chicago Board of Elections and the Clerk

of Lake County.

The complaint in Pontikes v. Kusper was filed in district

court in September 1971 and that in Klaetsch v. Stern in

October 1971. A request for a three-judge court was sub-

©@) Sections 7-43 and 7-44 provide:

§7-43. No person shall be entitled to vote at a primary:

‘ (2) Unless he declares his party affiliations as required by this

rticle ;

(b) Who shall have signed the petition for nomination of a

candidate of any party with which he does not affiliate, when

such candidate is to be voted for at the primary ;

(c) Who shall have signed the nominating papers of an inde-

pendent candidate for any office for which office candidates for

nomination are to be voted for at such primary; or

(d) If he shall have voted after January 1, 1939 at a pri

mary held under this Article 7 of another political party within

a period of twenty-three calendar months next preceding the cal-

endar month in which such primary is held. . . .

§7-44. Any person desiring to vote at a primary shall state

his name, residence and party affiliation to the primary judges. . .-~~

No person who refuses to state his party affiliation shall be al-

lowed to vote at a primary.

—3a—

sequently granted, and the two actions were consolidated.

The plaintiffs principally charge that section 7-43(d), which

outlines the so-called “twenty-three month” rule, is uncon-

stitutional because it impinges upon the right to vote and

the right of association. They claim further that sections

7-43(a) and 7-44, the sections requiring a declaration of

party affiliation, should fall as violative of the right to

privacy, the right to vote, the right of association, and the

provisions of the Voting Rights Act of 1960, 42 U.S:C.

§1971. They seek summary judgment based on these con-

tentions. The defendants move to dismiss the complaint on

the ground that no “case or controversy” has been present-

ed, that no substantial federal question has been raised to

vest jurisdiction in this court, and that even if jurisdiction

were sustained, the federal courts should abstain from exer-

cising it. We find no merit to these contentions and accord-

ingly, we deny the defendants’ motion. We grant the plain-

tiffs’ motion for summary judgment only where section

7-43(d) is concerned. We find no basis for overturning sec-

tions 7-43(a) or 7-44. .

I

The issues raised in the defendants’ motion to dismiss

have been considered and rejected by this court and others.

Numerous cases have held that constitutional attacks on

primary regulations by those immediately affected, prior

to the primary date, do meet the requirements of a “case

or controversy.” See Wiliams v. Rhodes, 393 U.S. 23

(1968); Rosario v. Rockefeller, No. 71-C-1573—Eisner v.

Rockefeller, No. 71-C-1621 (E.D. N.Y., filed Feb. 10, 1972) ;

Bendinger v. Ogilvie, No. 71-C-2037 (N.D. Ill. filed Nov.

~ 16, 1971); Jackson v. Ogilvie, 325 F. Supp. 864 (N.D. Ill. :

1971).

LE PIE ES OBS Fike

BAMBI

Le LAL SBN, eR le SOTO a

Moreover, this action raises several significant federal

questions, principally the impact of the challenged statutes

on the plaintiffs’ right to vote and right of association. In

Bendinger v. Ogilvie, swpra, which involved a statute bar-

ring candidates from running in a primary who had voted

in another party’s primary within the preceding twenty-

four months, this court did not contest the fact that prima.

ries were subject to federal constitutional standards and

considered only whether these standards were met. Simlar-

ly, jurisdiction was properly found in two recent federal

eases which dealt with primary, election procedures com-

parable to those at issue here, Gordon v. Executive Comm.

of the Democratic Party of the City °f Charleston, No. 71-

852 (D.S.C., filed Sept. 22, 1971), and Rosarto v. Rockefel-

ler, supra.

Finally, we see no reason to abstain from exercising our

jurisdiction. There are no unsettled questions of state law

at issue here which would require state court interpreta-

tion. The statutes involved are unambiguous. The only point

in question is their conformity to the federal Constitution,

a question we are mandated to resolve.

Il

The plaintiffs’ attack against section 7-43(d) is grounded

upon both the right of association and the right to vote.

We agree that the “twenty-three month rule” substantially

burdens plaintiffs’ right to vote in derogation of Article

I, §2 of the Constitution. Those who have voted in the

March 1971 primary of one party are now deprived of the

right to vote in the March 1972 primary should they choose

to switch parties at this time. Even voters eligible to vote

in any priniary this March are affected since they are

forced to choose between their right to vote and their right

ee ee te

to freely affiliate within the twenty-three month period fol-

lowing the election. The defendants counter that the right

to vote protected by the Constitution does not include the

right to vote in a primary. They characterize primaries as

the purely internal procedures of private organizations.

We find the holding in United States v. Classic, 313 U.S.

999 (1941), dispositive :

Where the state law has made the primary an integral

part of the procedure of choice, or where in fact the

primary effectively controls the choice, the right of

the elector to have his ballot counted at the primary

is likewise included in the right protected by Article I,

§2. 313 U.S. at 318. (Emphasis added.)

See Wiliams v. Rh°des, supra; Moore v. Ogilvie, 394 U.S.

814 (1968) ; Gray v. Sanders, 372 U.S. 367 (1962) ; Smith v.

Allwright, 321 U.S. 649 (1944); Gordon v. Exec. Comm.,

supra; Rosario v. Rockefeller, supra. Since in Illinois,

primaries are subject to extensive state regulation, III.

Rev. Stat., ch. 46, they fall squarely within the test of Clas-

In addition, we agree that the contested statute repre-

sents a significant incursion on the plaintiffs’ rights of free

association. It has the effect of attaching penalties to affi-

liation and disaffiliation since voters may not change parties

during the twenty-three month period without being disen-

franchised in the party primary of their choice.

Where a deprivation of the right to association or the

right to vote is at stake, the statute will only be upheld if

the state proves that it serves a “compelling” state inter-

est. In Williams, the Court considered a challenge to sev-

eral Ohio election laws which were claimed to make it “vir-

tually impossible” for a new political party to be placed on

WRITES LOPS Wet NORTE TY ANSE NCES INR AYE EAE ERLE TE A CEES SOR RIB. ne ant

are ere

—§a—

state ballots for the purpose of choosing electors pledged

for particular presidential or vice-presidential candidates.

The Court stated:

3 In determining whether the State has power to place’

hints Bi epics ic Actes eeccbseR

: such unequal burdens on minority groups where rights

: of this kind are at stake, the decisions of this Court

; have consistently held that “only a compelling State

3 interest in the regulation of a subject within the State's

constitutional power to regulate can justify limiting

First Amendment freedoms.” 393 U.S. at 31.

Kramer v. Union Free School District, 395 U.S. 621 (1969),

used a “compelling state interest” standard where only a

deprivation of the right to vote rather than of first amend-

ment rights was charged. More recently this court in Bend.

inger v. Ogilvie, supra, applied the identical test. See Rosa-

rio v. Rockefeller, swpra.

The interest which section 7-43(d) is claimed to protect

is the state’s interest in guarding against any distortions

of the electoral process in general and in maintaining the

integrity of the two-party system in particular. The statute

serves these interests by preventing a practice known as

: “raiding.” “Raiding” occurs when members of one party

vote in the primary of another party for the sole purpose

of bringing about the nomination of the weakest candidate.

; But the statute sweeps too broadly, impeding both deceptive

conduct and constitutionally protected activities. If section

; 7-43(d) were not in effect, massive party switching could

’ occur either because of the well-planned raiding of one

: party’s primary by members of another party, or because

; of massive dissatisfaction with the prevailing policies of

4 an existing party. The state’s interest upon which this stat-

ute is grounded could be characterized as “compelling” only

ae

Me

Zid caps hg AARP. ES wry OS ING i ilk aM a2

Pes a Ne

.

REIMER IEICE NP —

-

ey fern

if the former alternative is more likely to occur than the

latter, or if raiding constitutes a more important danger

than the danger to constitutionally protected rights how-

ever often it oceurs. There is no evidence to indicate that

raiding is more likely to take place than “honest” switches

of affiliation. Forty-four states do not impose post-election

restraints on changing affiliation. This would indicate that

raiding is not a serious threat to the multi-party system.

Moreover, we cannot say that the mere possibility of

raiding is more important than the potential deprivation

of first amendment and voting rights this statute effects.

The state’s interest in maintaining a multi-party system

has been found to be “compelling” at the primary level only

where constitutional claims were raised by candidates who

were barred from running in one party’s primary when

they had voted in another party’s primary within the pre-

vious two years, Bendinger v. Ogilvie, supra, or within the

previous four years, Lippitt v. Cipollone, No. 71-5729 (U.S.,

filed Jan. 17, 1972), and by candidates who were required

to sign oaths affirming their support for the presidential

and vice-presidential candidates of the party to which they

claimed allegiance, Ray v. Blair, 343 U.S. 214 (1952).

Where—as in the instant case—the state’s interest is

weighed against the constitutional claims of political party

members, the outcome has been different. In Williams v.

Rhodes, supra, burdens on the right to form a party capable

of effectively competing with other parties could not be

justified by the state’s interest in promoting a multi-party

system. In Rosario y. Rockefeller, swpra, and Gordon v.

Exec. Comm., supra, state laws which affected constitu-

tional rights in the same fashion as the Illinois law also

fell where the identical justifications were offered. Indeed,

PLE GIES LG ELE LP I IO LL ITLL BEL EE

sclera

dicta in Bendinger Ve Ogilvie, supra, specifically distinguish

between the associational and voting rights of members

of political parties and the rights of candidates:

The state’s interest in limiting candidates from switch-

ing parties, as detailed above, is greater than its inter-

est in limiting voters from switching parties. The

state’s interest in preserving a vigorous and competi-

tive two-party system is fostered by the requirement

that candidates demonstrate a certain loyalty. and at-

tachment to the party in whose primary they are run-

ning; the same cannot be said of voters, however, who

should be freer_to demonstrate changes in political

attitude by voting for popular candidates or against

unpopular candidates in any party’s primary election.

These cases cannot be distinguished by characterizing the

state’s interest in section 7-43(d) in terms of the protection

of the electoral process rather than the preservation of the

two-party system. The difference is semantic. Distortion

of the electoral process would here be occasioned by a dis-

tortion of the procedures of candidate selection, namely,

the selection procedures of a two-party system.

We find none of the justifications offered by the state to

be sufficiently compelling to outweigh the costs to constitu-

tionally protected rights. The rights to free association and

to the vote are at least as important today as they were at

the time the Constitution was written. The pace of political

change has greatly accelerated. A wide variety of impor-

tant political events are likely to take place even during the

two-year period in which voters must affiiliate with a single

party or be disenfranchised. Moreover, primaries held

during this period are likely to reflect a broad range of im-

portant issues. The Illinois statutes provide for elections

—9a—

in each of the even numbered years for various state and

county offices. These elections coincide with the elections

for President, Vice-President, and members of Congress.

Other primary elections are provided for, including special ‘

elections to fill certain vacancies, township elections, and

city and village elections. These are conducted in the so-

called “off years,” the period between the regular primary

and general election in the even numbered years. This

scheduling, coupled with the twenty-three month rule of

section 7-43(d), has the effect of precluding a voter from

participating in a primary of one party in a township, city,

or village election. and another at the regular primary

level. We find this result untenable. Whatever are the ad-

vantages of maintaining party stability for elections at any

given level of government, they do not apply when national,

state, and local contests are considered together. A voter

ought not be required to hold himself bound to a single

party on every level of government.

Ill

Plaintiffs claim that sections 7-43(a) and 7-44, which re-

quire a declaration of party affiliation prior to voting, bur-

dens their rights to privacy, to freely associate, and to the

vote, in addition to violating the Voting Rights Act of 1960,

42 U.S.C. §1971. We do not agree. The voter’s choice of

candidates in a single party’s primary is not disclosed. The

only public declaration he is called upon to make is to

choose which party primary to participate in. Any imposi-

tion this places on the voter is minimal. Moreover, what-

ever burden is. suffered is outweighed by the state’s “com-

pelling” interest in preventing election fraud. Membership

in a political party may be distinguished from member-

ship in any other organization because of the role of the

YY

3 —10a— .

state in regulating and enforcing party selection proce-

dures. Cf. NAACP w. Alabama, 357 U.S. 449 (1958). See.

tions 7-43(a) and 7-44 not only serve to enforce the twenty.

three month rule, as the plaintiffs claim, but also to buttress

the requirement that voters participate in only one party’s

‘primary at a time.

The motion of defendants to dismiss the complaint is

denied, and the motion of plaintiffs for Summary judgment

is granted insofar as section 7-43(d) is concerned. Section

7-43(d) of the Illinois Revised Statutes, Chapter 46, is here.

by declared to be violative of the Constitution of the United

States and is null and void. Defendants, their officers,

agents, servants, employees, and attorneys, and those per-

sons who act in active concert or participation with them

are permanently enjoined, without bond, from executing or

enforcing section 7-43(d) of the Illinois Revised Statutes,

Chapter 46.

Enter: Luther M. Swygert

United States Cireuit Judge

William J. Bauer

United States District Judge

Dated: March 7, 1972

DISSENTING OPINION

MAROVITZ, District Judge. I dissent not because I dis-

agree with the majority’s characterization of the right to

vote and freely associate or with the “compelling state

interest” test that ought to be employed in determining

whether or not an unconstitutional infringement of those

rights has taken place but rather because having applied

that test to the present situation, unlike the majority I have

found no such infringement.

Fra RG REARS OS TOE RIN OE GRE TR FE 8 SRY ES

a—,

—Lla—

(I might note here that I fully concur in the jurisdic-

tional findings of the majority; that a “case or contro-

versy” does exist; that a substantial federal question has

been raised; and that abstention would be improper in this

ease. The law is clear on these points and has been ade-

quately documented by the majority. See Majority Opinion,

supta, pp. 4-7.)

The crux of the majority opinion is based on the wholly

valid proposition that any state infringement of the right

to vote must be grounded in a “compelling interest” whose

objective fully justifies tampering with rights so funda-

mental and hallowed as the right to vote and freedom of

association. Indisputably the right to vote lies at the very

heart of the democratic process and is a fundamental ele-

ment in the principles by which this Nation is governed.

Although the manifestation of this right has gone through

vast political, social, demographic and geographic trans-

formations over the years assuming the various shapes

and forms suitable to the practicalities and exigencies of

a particular era, its essential core stripped of historical

and periodical gloss—the right of all citizens to choose

freely without governmental interference—has always re-

mained the same. It is the purity of this core that is pro-

tected from unwarranted and unjustified state interven-

tion. Yet one need only look at the election code of any

state in the Union today to realize that some sort of reg-

ulatory election procedure is not only justified and war- :

ranted but is moreover essential to preserve voting purity £

and to prevent electoral anarchy. What must be pinpoint-\\, |

ed, then, is that fine line between the permissible and the _}

impermissible.

It is because I concur in the majority’s general view of

the “compelling interest” test and because I do not wish

eee oS

my dissent to be misconstrued in any way as adulterating

or altering that test or as permitting alleged violations of

voting rights to be scrutinized with any less care than they

are now being tested, that I find it necessary to briefly

trace the development of the law in voting. rights cases,

—12a—

There are basically two criteria by which the constitu-

tionality of an election statute can be judged, one objective

and the other subjective. The objective test is simply the

comparison of the questionable regulation with constitu-

tional dictate and previous pronouncements of the Supreme

Court. If the Supreme Court has specifically prohibited

a certain practice there is no doubt that the state regulation

which directly conflicts with that prohibition must fall. But

the law has never been so precedentially precise as to cover

all situations in all times and quite often a specific proce-

dure upon which the Constitution and the Courts have not

yet spoken is attacked. Thus, parallel with the development

of specific prohibited categories of conduct and growing

out of Supreme Court usage, there has evolved a subjective

test that is used for those instances that do not fit into

any preconceived constitutional slots. This subjective test,

as used in election cases has matured from the “rational

basis” to the “compelling state interest” test.

In the earlier years of our country the Congress and the

Courts were concerned with the formative problem of ex-

panding a basically limited suffrage to that of universal

suffrage. The most blatant and obviously unconstitutional

disenfranchisement was the quantitative exclusion of larger

segments of the population such as black people and women.

Both of these exclusions were cured by constitutional

amendments, the latter occurring within our time, and

quite understandably a state cannot now claim that it has

z

:

é

.

;

>

‘7

bs

_ s

—13a—

a “compelling interest” to exclude those groups. Disen-

franchisements of this sort are easily discernible and fit

into clear-cut constitutional categories.

In recent years cases dealing more with the qualitative

rather than quantitative aspects of the vote have reached

the Supreme Court. In these instances there was no out-

right denial of the right to vote but rather the question |

raised was whether the right of suffrage is denied by dilu- :

tion or debasement of a vote cast by mal-apportionment.

In Reynolds v. Stms, 377 U.S. 533 (1964) the apportion-

ment of the Alabama Legislature’s two houses was chal-

lenged on equal protection grounds.

| See also Baker v. Carr, 369 U.S. 186; Gray v. Sanders,

372 U.S. 368; Wesberry v. Sanders, 376 U.S. 1; U.S. v.

Mosely, 238 U.S. 383; United States v. Classic, 313 U.S.

299; Ex parte Stebold, 100 U.S. 371; U.S. v. Saylor, 322

U.S. 385; Gomillton v. Lightfoot, 364 U.S. 339; Niron v.

Herndon, 273 U.S. 536; NtxOn v. Condon, 286 U.S. 73;

Smith v. Allwright, 321 U.S. 649; ‘Terry v. Adams, 345 U.S.

461.

ee a? ee

———

In the last decade the courts have also been faced with

the narrower more limited exclusions of smaller segments

of the population. Often these lesser restrictions are of a

very localized and regional nature unlike the nationwide

exclusions of a century ago. At times these exclusions such

as poll taxes or literacy tests come cloaked in the guise of

a general regulation but in reality are racially motivated

having a more pronounced effect on minority groups; other

times the state is simply convinced that a certain regula-

tion is desirable and permissible. See for example: Car-

rington v. Rash, 380 U.S. 89 (1965); State may not deny

the opportunity to vote a bona fide resident because he is

~ Sree eee , - — — a

[ a

a member of the armed forces. Harper v. Virginia Board

of Election Commissioners, 383 U.S. 663 (1966): State may

not impose a poll tax; Aramer v. Union Free School Dis-

trict, 395 U.S. 629 (1969): State may not require citizens

to own or lease taxable realty in order to vote in a local

election. See also City of Phoentz v. Kalodziejski, 399 US.

204 (1970); Evans v. COrnman, 398 U.S. 419. (1970): State

- eannot refuse to permit persons living in a federal enclave

to vote; Affeldt v. Whitcomb, 319 F. Supp. 69 (Three Judge

Court, N.D. Ind) 1970): State may not impose a one year

residency requirbment. See also Hadnott v. Amos, 320 F.

Supp. 107 (Three Judge Court, M.D. Ala. 1970), aff'd. 401

U.S. 968 (1971) (one year residency requirement struck

down) and Keppel v. Donovan, 326 F. Supp. 15 (Three

Judge Court, D. Minn. 1970) (6 month requirement struck

down).

Thus these specific practices have explicitly been out-

lawed by the Supreme Court and some lower Federal

Courts. Yet as indicated earlier an implicit criteria has

developed out of these cases to be,used in those areas yet

uncharted by the Supreme Court.

FF The District Court in New York in Rosario, ¢t al. v.

‘ Rockefeller, et al, 71 C 1573 (Slip Op. February 10, 1972)

: spent a great deal of time in tracing the development of

the subjective “compelling interest” test. In Reynolds v.

Sims, supra, the Supreme Court said that “any alleged in-

fringement of the right of citizens to vote must be care-

fully and meticulously scrutinized.” 377 U.S. at 561-62

A year later in Carrtmgton v. Rash, 380 U.S. at 96, the Court

stated that “States may not casually deprive a class of

individuals of the vote because of some remote administra-

tive benefit to the State” and in 1966 in Harper v. Virgia

Oe

——15a—

State Board 9f Elections, 383 U.S. 663 at 670, the Court

indicated that “where fundamental rights and liberties are

asserted under the Equal Protection Clause, classifications

which might invade or restrain them must be closely scru-

tinized and confined.”

The Court in Rosario went on to say:

“At the October Term of 1968, the Supreme Court

continued to enlarge the divergence between the treat-

ment to be accorded most state statutes when attack-

ed as violating the Equal Protection Clause and the

treatment to be accorded those statutes specifically

affecting the right to vote. In Widliams v. Rhodes, 393

U.S. 23, 89 S. Ct. 5 (1968), the Court was presented

with a challenge to a set of Ohio statutes which made

it extremely difficult for any party other than the |

Democratic or Republican Party to achieve the status |

of an established party and to have its name and its |

candidates placed on the ballot in the general elee-

tion... The test applied by the Court, however, was

not whether any merely rational basis could be imag-

ined to justify the enactment of the statutes, but

whether or not there was any compelling state interest

to justify their existence...

The Court drew support for the use of this test from

a case which had not involved the right to vote, but

was solely concerned with First Amendment rights of

association . ..

The Court concluded by saying that “The State has

here failed to show any ‘compelling interest’? which

justifies imposing such heavy burdens on the right to

vote and to associate,” and “. . . the totality of the

Ohio restrictive laws taken as a whole imposes a bur-

den on voting and associational rights which we hold

Ne eee En

|

—16a—

is an invidious discrimination, in violation of the

Equal Protection Clause.” (393 U.S. at 31 and 34, 89

S. Ct. at 11 and 12).

The opinion in Wiliams v. Rhodes, supra, left one

in some doubt as to whether the compelling state inter-

est test would be applied to cases involving only voting

rights and having no First Amendment overtones.

Later in that same Term, however, the Court decided

Kramer v. Union Free School District, 395 U.S. 621,

89 S. Ct. 1886 (1969), and did much in the Kramer

opinion to clarify its view of the appropriate test to

be used when statutes involving the right to vote are

challenged on equal protection grounds.

In Kramer, the challenged statute restricted the vote

in local school board elections to those otherwise quali-

fied voters who were either parents of children at-

tending schools within the local public school system

or were owners or lessees of real property within the

school district . . . The Court held that the compelling

state interest test applied to the voting restrictions in

issue, and, finding no such interest, voided the statute

| The Court said:

Appellant agrees that the States have the power

to impose reasonable citizenship, age, and resi-

dency requirements on the availability of the bal-

? lot. Cf. Carrington v. Rash, 380 U.S. 89, 91, 85 S.

: Ct. 775, 777, 13 L. Ed. 2d 675 (1965) ; Pope v. Wil

liams, 193 U.S. 621, 24 S. Ct. 573, 48 L. Ed. 817

(1904). Statutes granting the franchise to resi-

dents on a selective basis always pose the danger

of denying some citizens any effective voice in the

governmental affairs which substantially affect

their lives. [Footnote omitted.] Therefore, if a

DREGE RAEN SOW SEE HERA NER TET AHORA RON OTT TRAN —

x Pr on

—17a—

challenged state statute grants the right to vote

to some bona fide residents of requisite age and

citizenship and denies the franchise to others, the

Court must determine whether the exclusions are

necessary to promote a compelling state interest.

(395 U.S. at 625-27, 89 S. Ct. 1888-90). [Emphasis

in original.)

It is evident from the Court’s opinion in Kramer

that once a state has imposed basic voting require-

ments of citizenship, age, and residency, all further

requirements (which by their nature must be viewed

as restrictions) must of necessity be supported by a

compelling state interest. This is effect places the bur-

den of proof on the state, the reverse of the situation |

where the rational basis test is applied. The basic re- |

quirements of citizenship, age and residency, are to |

be tested, when they are challenged, by the traditional,

“rational relation” test, used in garden-variety equal

protection cases.”

We therefore have before us a clearly defined subjective

test to apply in our case given the absence of any specific

Supreme Court pronouncement on the constitutionality of

a 23-month rule. What must be determined is whether the

State of Illinois has carried the burden in proving that it

has not merely a rational basis for prohibiting voting in

a primary of one party by a citizen who has voted within

23 months in the primary of another party but that it has

a “compelling interest”. What must also be kept in mind is

that voting rights are not absolute and that there is a de-

gree of constitutional infringement short of invidiousness

that is permissible as long as the infringement is compelled

by a state interest and affects the rights of the voters as

—

RN ase Ran rt

SO

=)

little as practicable under the circumstances. This in fact

was part of the rationale of Bendinger, supra, at p. 4:

“Before a state can place any restrictions upon the

freedom to associate freely and to vote, it must be

shown that a compelling state interest justifies such

regulation. Wiliams v. Rhodes, 393 U.S. 23 (1968);

NAACP v. Button, 371 U.S. 415 (1963); Jackson y,

Ogilvie, supra. Further it must be shown that the state

statute in question is not only as fair as possible but

also that it infringes wpon the First Amendment rights

of those affected as little as practicable under the cir-

cumstances. Williams v. Rhodes, supra at 32, 33; Bris.

coe v. Kusper, 435 F. 2d 1046 (7th Cir. 1970) ; Jackson

v. Ogilvie, supra.” [Emphasis added]

The compelling interest asserted by the State is the pre.

vention of inter-party “raiding” that would result from

open primaries. Raiding occurs where members of one

party vote in the primary of the opposition party in the

hopes of electing a weak candidate or a “straw man” who

could easily be defeated by the candidate of their true party

in the general election. This might happen where the candi-

date of their true party is running unopposed in the pri-

mary and their votes are not needed; where a certain can-

didate in their party is far stronger than all challengers

making their votes unnecessary and better utilized in the

primary of the other party; or where members of one party

in a certain district far outnumber the members of the op-

position party and a great portion of the votes are expen¢-

able and can be allocated to set up a “straw man”.

That such “raiding” can occur has been recognized by

several Courts. In Bendinger v. Ogilvie, 71 C 2037 (ND.

Ill.) a Three Judge Court dealt with the Illinois statutory

|

Tee eM

SRE, PLGA EI ERE Bs eas iy

—19a—

requirement that in order to be an eligible candidate in a

political party primary a person cannot have “requested a

primary ballot of any other party at a primary election

held within two years of the date on which the petition

must be filed.” Ill. Rev. Stat., Ch. 46, Section 8-8. The Court

found the statute constitutional and said:

“In addition to the policy of limiting the elective

process to manageable and realistic proportions, there

are even more serious and compelling reasons under-

lying this legislation. The most important of these is

the prevention of the subversion of the entire elective

process. The keystone of our democracy is the party

system of politics. Before any general election, each

party must go through its manpower resources in

order to find a candidate who not only represents a

consensus of the opinions of the members of his own

party, but will be appealing to a majority of the en-

tire voting population as well. If there were no “24

month rule”, then this system could be thrown into

total chaos. For instance, suppose Party A had a strong

candidate for a certain post and it was clear that he

would receive his party’s nomination with votes to

spare. Without the deterrent effect of the “24 month

rule” it would be a relatively simple matter for Party

A to have one or more of its party regulars run in

Party B’s primary in the hope that one would win the

Party B primary and then put up little or no opposi-

tion to the Party A candidate in the ensuing general

election. The resulting confusion and subversion of the

elective process is obvious, and, without the “24 month

rule”, could not be controlled.

There is another obvious reason which is clearly

compelling and which underlies this legislation. It,

too, is grounded in the protection of the elective pro-

7

cess. That. is the question of protecting the party sys.

tem as we know it. Without rules like the “24 month

rule”, party swapping and changing might conceivably

become so prevalent that the average political party

could no longer function properly. With the resulting

disruption of party unity and discipline, a political

party would be unable to decide who to support be-

cause the person whom they did or did not support

today could be on the other side of the aisle tomorrow.

Thus, it is obvious that the “24 month rule” protects

the elective process from subversion from many sides

and thereby serves to promote the most compelling of

state interests.”

—_0a—

The Court stopped short of applying this same com.

pelling interest to voter rather than candidate cases and

in fact indicated that the case might be different in the

voter situation. Bendinger, however, was a candidate case

and the Court had no real opportunity to adequately con-

sider the “raiding” implications in voter cases. This Court

on the other hand has had ample opportunity to consider

all the evidence and to hear oral argument on this precise

issue and I find that the State’s prevention of “raiding”

is as compelling an interest in voter cases as it is in can-

didate cases and that the State has met all of the require

ments of the “compelling interest” test as set out above.

(See also Gunderson v. Ghent, et al., 69 C 43 (WD. Ill

Slip. Op. February 2, 1970) which also upheld the statute

regarding candidates on the grounds that “it reflects a

State policy to foster and lend stability to party structure

and political organization”.)

In Lippitt v. Cipollone, C 71-667 (N.D. Ohio Slip Opinion,

November 5, 1971) the Court also considered a statute

regulating candidacy based on party affiliation. The Court

said:

. Ee — . ,

Preeraaness is RESELL TY AIT LON EY NETL LON ETL ARE FS OE OI PM TO

—2la—

“The compelling State interests the Ohio Legislature

seeks to protect by its contested statutes is the inte-

grity of all political parties and membership therein.

These Ohio statutes seek to prevent “raiding” of one

party by members of another party and to preclude

candidates from “. . . altering their political party affi-

liations for opportunistic reasons.’ State ex rel. Bible

v. Board of Elections, 22 O.S. 2d 57 (1970). Protection

of party membership uniformly applied to all parties

cannot be characterized as “invidious discrimination”

as defined in Williams. The United States Supreme

Court has recognized the need to “protect a party from

intrusion by those with adverse political principles’ to

be a legitimate purpose for said legislature. Ray v.

Blair, 343 U.S. 214 (1952).

The requirement of the challenged statutes insuring

party integrity and party political affiliation, together

with the exemptions enacted to aid emerging political

parties, are simple, reasonable, and uniform proce-

dures designed to accomplish the desired result.”

The U.S. Supreme Court in Ltppitt v. Cipollone, 71-5729

(Slip. Op. January 7, 1972) in affirming the lower Court

decision without opinion implicitly conceded the possibility

of raiding and recognized its prevention as being a valid

State interest. Preventing raiding is a valid compelling

interest of the State and is as applicable, I believe, in voter

cases as it is in candidate cases.

Juxtaposing this compelling interest of the State against

the temporary deprivation of the plaintiffs’ right to vote

in this particular primary and considering the fact plain-

tiffs’ are not deprived of their right to vote since they are

perfectly free to vote in the primary of the party for which

they voted in the February 1971 primary, I find no basis

for overturning these statutes.

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—_22a—

While the majority finds that “[t]here is no evidence to

indicate that raiding is more likely to take place than ‘hon. —

est’ switches of affiliation” and “that raiding is not a serious

threat to the multi-party system” (Majority Opinion, p. 8)

I am compelled: by the evidence and Illinois political cir.

cumstance to believe that such a threat is a very real and

imminent’ one absent the statute in question and not merely

one in the realm of the hypothetical or speculative. Thus

my application of the compelling interest test to the pres-

ent situation produces a different result than that of the

majority based on the single, critical factor of the sub-

stantiality and probability of inter-party raiding.

We might note here that the result in Rosario, supra was

the invalidation of a procedure that was also designed to

prevent raiding. In that case however the “enrollment box”

procedure failed to meet the “compelling interest” test be-

cause it was not the least drastic measure available to ae

complish the objective sought and it was not proven that

the system was necessary for its accomplishment. The

Court did not however discount the possibility of raiding

but determined that there was a less invidious method of

preventing it. I, however, believe that the sweep of the

23-month rule is narrow enough to conform with the least

invidious and compelling interest test.

Furthermore I do not believe that the contrary decision

of Gordon v. Executive Committee of the Democratic Party

of Charleston, 71 C 852 (D.S.C. Slip. Op. September 2,

1971) forecloses my opposite finding. The statute in that

ease also prevented a citizen from voting in the primary of

another party and the Court invalidated it on the grounds

that it was arbitrary and was not justified by a compelling

State interest. What must be understood is that the “com

pelling interest” test is of an acutely subjective nature and

—23a—

given the fact that political climates are as variable -as~\,

geographic climates a State interest that might be less

than compelling to a Judicial panel in one locale may take

on compelling proportions to a panel in a different dis-

strict.

I need not elaborate on the constitutionality of the Sec-

tion 7-43(a) and Section 7-44 regarding the declaration

of party affiliation since defendants themselves admit that

it is the means by which the 23-month restriction is en-

foreed. Having found that the 23-month rule is constitu-

tional we likewise find that the same compelling State in-

terest of “raiding” justifies the declaration of party affi-

. liation and that it does not violate the First and Fourteenth

Amendments, or the Voting Rights Acts. In addition the

majority, which has found the twenty-three month rule un-

constitutional has nevertheless upheld the declaration of

party affiliation portion of the statute on the grounds that

the infringement on the voter is minimal and that “what-

ever burden is suffered is outweighed by the state’s ‘com-

pelling’ interest in preventing election fraud,” and that

furthermore it is also necessary “to buttress the require-

ment that voters participate in only one party’s primary

at a time”. (See Majority Opinion at pp. 11-12.) Thus even

if we were not to consider raiding a threat we would never-

_ theless be bound to find the declaration portion of the stat-

ute constitutional based on the majority’s reasons.

To summarize, then, in applying the current compelling

interest test as designed for voting rights cases I have

found that both the 23-month rule and the declaration of

party affiliation is fully justified by the interest of the

State in preventing the inter-party raiding that would re-

sult absent these restrictions; that the infringement of the

plaintiffs’ rights is minimal given its temporary nature

—%4a—

and the existence of alternate electoral avenues; and that

these are the least drastic measures available.

In finding so I need not base my decision solely on the

grounds that the preservation of party integrity and the

multi-party system is a proper state interest as Bendinger,

Gunderson and Lippitt v. Cippollone do indeed indicate.

The argument that this Court ought not be instrumental in

preserving those artificial procedures and extra-constite-

tional encumberances, such as party politics, that have been

engrafted wisely or unwisely by historical development

upon the purity of the American electoral process might

be a more valid one were we being asked to take the ini-

tiative in instituting such procedures where they did not

before exist. Thus if political parties as such and their

accompanying procedures were nonexistent it might be

validly posited that it is beyond the province of this Court

to lend assistance in their creation. This, however, is not

a case where we are being asked by the State for a declara- |

tory judgment or injunctive relief that would create or put

into effect party system rules such as the 23-month or

party affiliation regulations. Rather our task has been to

analyse and weigh, with the prescribed constitutional ecri-

teria, an already existing law that the legislature in its

considered judgment has determined to be the best method

available for the preservation of that electoral purity that

both sides in this case so earnestly desire. It-is far be

the role intended for this Court to adopt the posture of

a microcosmic legislature that would design better methods

of preserving electoral purity where an adequate statute

that meets the compelling interest test has already been

promulgated by the state legislature. In attempting to

preserve that purity as embodied and manifested in the

statutes under attack it would be remiss of this Court not

to take judicial notice of the inescapable fact that parties

—

—_-_

—Ba—

and party lines do indeed exist and that they are insepar-

able elements of the electoral scene. We would be equally

remiss if we were not cognizant of the fact that party al-

legiances are powerful and can quite easily lead to nefar-

ious inter-party raiding absent any restrictions. [See Drei-

ske, GOP Primary Ploy, Chicago Sun-Times, March 1, 1972,

p. 40, which indicates that Republicans are being urged on

alarge scale to cross over into the Democratic Primary on

March 21, 1972 since there are no real contests in the

~ Republican Primary. The article indicates that an even

greater crossover would take place were it not for the

twenty-three month rule.) The adoption of such a position

when reality so compels and the circumstances so dictate

does not mean that I take a more jaundiced or more un-

trasting view of the voting public than does the majority

hut rather indicates that I believe the phenomenum of raid-

ing to be an inescapable outgrowth of the competitiveness,

engendered by the multi-party system and that that com-

petitiveness ought not go so far as to inject any impurities

or fraud into the electoral process as it manifests itself

on general election day. My determination then, that the

statute is not unconstitutional is as much motivated by

my desire to preserve the multi-party system as it is to

prevent the shambles that could conceivably result in the

general elections, irrespective of party considerations,

absent any prophylactic measure to prevent raiding.

I would therefore find Sections 7-43 and 7-44 constitu-

tional and dismiss the Plaintiff’s case. Being in the minor-

ity | must be contented with a vigorous dissent.

Enter: Abraham Lincoln Marovitz

Judge

Dated: March 7, 1972

—%a— .

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Name of Presiding Judge

Honorable Abraham L. Marovitz

Date March 9, 1972

No. 71 C 2363—Harriet G. Pontikes vs. Stanley Kusper,

et al.

No. 71 C 2415—Donna Klaetsch vs. Grace Mary Stem,

County Clerk

For decision

The three judge court having taken these two cases

under advisement has decided by a vote of two to one

that Section 7-43(d) of the Illinois Election Law which

prohibits voting in a party primary by one who has

voted in the primary of another party within twenty

three months is unconstitutional. Chief Judge Swygert

and District Judge Bauer for the majority have found

that the twenty-three month rule infringes on the right

to vote and the right to freely associate and that the

State has failed to prove that it has a compelling interest

in maintaining this statute.

Judge Marovitz dissents from the holding that the

twenty-three month rule is unconstitutional and would

uphold the statute on the grounds that the State does

have a compelling interest in preventing inter-part raid-

—,/—

ing and the crossing of party lines that would result in

the absence of such a rule.

All three judges concur in the finding that the declara-

tion of party affiliation as it appears in §7-43(a) and

{7-44 ts constitutional because its effect on voters is

minimal and it is justified by the State’s compelling in-

terest to prevent voter fraud. Judge Marovitz holds

in addition that it is necessary to effectuate the twenty-

three month rule which he would uphold.

Holding: The twenty-three month rule, § 7-43(d) is

ruled unconstitutional and the declaration of party af-

flliation rule § 7-43(a) and § 7-44 are held constitutional.

(Draft)

—28a—

APPENDIX C

IN THE UNITED STATES, DISTRICT COURT

NORTHERN DISTRIC? OF ILLINOIS

EASTERN DIVISION

Harriet G. Pontikgs,

Plaintiff,

Vs.

Srantey T. Kusper, Jr. Francis P. > No. 7102363

Canary, and Maric Sutuers, as The

Chicago Board of Election Commis-

sioners,

Defendants. J

Donna KLaretTscH and )

Peter LoMBaARDoO,

Plaintiff s,

vs. > No. 71 C 2415

Grace Mary Stern, County Clerk,

Defendant. |

NOTICE OF APPEAL TO THE SUPREME COURT.

OF THE UNITED STATES

Notice is hereby given that Stanley T. Kusper, Jr,

Francis P. Canary and Marie H. Suthers, as the Ch:

eago Board of Election Commissioners, some of the de-

fendants in the above cause, hereby appeal to the Su

preme Court of the United States from the final judg-

ment declaring unconstitutional and enjoining the e-

forcement of Ch. 46, §7-43(d), TIL. Rev. Stats. entered

'

—29a—

on March 9, 1972. This appea! is taken pursuant to 28

US.C. §1253.

/s/ Aldus S. Mitchell

William R. Ming, Jr.

Aldus S. Mitchell

Sophia H. Hall

Howard M. Miller

Attorneys for Stanley T. Kusper, Jr.,

Francis P. Canary and Marie H.

Suthers as The Chicago Board of

Election Commissioners

Dated: April 17, 1972

PROOF OF SERVICE

I certify that I served the attached Notice of Appeal

to the Supreme Court of the United States on:

Ray Jeffrey Cohen Andrew J. Leahy

One East Wacker Drive 134 N. LaSalle Street

Chicago, Dlinois 60601 Chicago, Illinois 60602

Mary Lee Leahy Hon. Jack Hoogasian

134 N. LaSalle Street State’s Attorney

Chicago, Illinois 60602 Courthouse, Room A-307

Waukegan, Illinois

by mailing a copy to each one in a properly addressed

avelope with ordinary first class postage fully prepaid

uid depositing it in a United States Postoffice facility at

Monroe and Dearborn Streets in Chicago, Illinois, on

April 17, 1972, before 5:00 P.M.

/s/ Aldus S. Mitchell