Vandross v. Ellisor

Citation347 F. Supp. 197
Decision Date10 August 1972
Docket NumberCiv. A. No. 72-676.
CourtU.S. District Court — District of South Carolina
PartiesSamuel J. VANDROSS, Plaintiff, v. James ELLISOR et al., Defendants.

Thomas D. Broadwater, Columbia, S. C., for plaintiff.

Daniel R. McLeod, Atty. Gen., of South Carolina, C. Tolbert Goolsby, Jr., Asst. Atty. Gen., Columbia, S. C., M. C. Woods, Jr., Marion, S. C., and John A. Hagins, Jr., Greenville, S. C., for defendants.

ORDER

HEMPHILL, District Judge.

Plaintiff, Samuel J. Vandross, a resident of Marion County, South Carolina, in this action originally filed June 15, 19721, seeks to have his name, as a candidate for nomination to Senate Seat No. 2 of Senatorial District No. 11 of South Carolina, printed upon the ballot to be used in the Democratic Party Primary Elections, now scheduled for August 29, 1972. The defendants include James B. Ellisor, Executive Director of the South Carolina State Election Commission, Willie Marvin Lane, Clerk of Court of Marion County, South Carolina, the South Carolina State Democratic Ralph Gasque, a resident of Marion for the aforementioned Senate office, J. Ralph Casque, a resident of Marion County and the incumbent, and Allard C. Horne, a resident of Horry County.2

Following a declaration by a three-judge United States District Court that its new plan for the apportionment of the South Carolina State Senate was a valid plan, see e. g., Twiggs v. West, Civil Action No. 71-1106, the General Assembly, by joint resolution designated Monday, May 29, 1972, at 12:00 o'clock Noon as the time when entries were to open for those who wished to file for nomination and election to the State Senate or House of Representatives. Saturday, June 3, 1972, at 12:00 o'clock Noon was designated as the time when those entries were to close. See Joint Resolution Ratification No. 1437 (May 25, 1972).3 Persons who desired to be nominated and elected to those offices had been prevented, up until then, by court order from filing for those offices. The United States District Court in the Senate and House reapportionment cases had enjoined, as it related to the offices of State Senator and Member of the House of Representatives, the enforcement of Section 23-396 of the South Carolina Code of Laws, a statute which, ordinarily, sets the time for entries by candidates into party primaries. See e. g., Twiggs v. West, supra; Stevenson v. West, Civil Action No. 72-45.

Insofar as the office of State Senator is concerned, the basic filing requirements were not altered. Only the time for filing was changed. For the 1972 elections, as well as for elections conducted in past years, one who desired to be a candidate for nomination and election to the State Senate in a multi-county, multi-member senatorial district was required, among other things, to file a "notice of candidacy" and a prescribed campaign pledge with a specified party official. Code of Laws of South Carolina, Cumulative Supplement § 23-400.73 (1962)4; See also, Code of Laws of South Carolina, Cumulative Supplement § 23-400.72 (1962). Such a person was further required to file with the State Election Commission an "intention of candidacy." Code of Laws of South Carolina, Cumulative Supplement § 23-285 (1962).5 The notice of candidacy, the campaign pledge, and the intention of candidacy were all required to be filed with the appropriate official by a prescribed deadline, see Code of Laws of South Carolina, Cumulative Supplement § 23-396 (1962), which for the 1972 elections was 12:00 o'clock Noon Saturday, June 3, 1972. Notice of candidacy, campaign pledge, and notice of intention of candidacy were all required only as to multi-county senate district filings.

Although he had been thinking of running for the State Senate for over a year, the plaintiff waited until the last possible day to attempt filing for a Senate office. At 10:12 a.m. on the morning of June 3, 1972, the plaintiff filed with Willie M. Lane, the Secretary and Treasurer of the Marion County Executive Committee of the Democratic Party in Marion, South Carolina, a campaign pledge and a notice that he was a candidate for Seat No. 2 of Senatorial District No. 11, a multi-county, multi-member senatorial district composed of Florence, Marion, Horry and Williamsburg Counties and assigned four Senators by the Reapportionment Act; he also paid a required filing fee of Two Hundred Fifty ($250.00) Dollars; local party rules in Marion County required this. He made no protest of this fee, which had been paid also by the other candidates. See Act bearing Ratification No. 1342 (May 6, 1972); 57 Stat. Act No. ___ (1972). Later that day, he attempted to file an intention of candidacy with the State Election Commission in Columbia, South Carolina. The Executive Director of the State Election Commission, the defendant Ellisor, would not accept it for certification to the Democratic Party; he positioned that the plaintiff did not enter the Commission's offices to file an intention of candidacy until after the filing deadline. Plaintiff, on the other hand, asserts that he went into the Commission's offices three minutes before the Noon deadline but was unable to reach the desk in the main lobby of the Commission's office in Columbia in order to file an intention of candidacy because a large crowd had gathered around it. Plaintiff demands, as was noted above, that his name be included as a Senate candidate on the election ballot and, in the event this court refuses to order the certification of his candidacy, the return of the Two Hundred Fifty and No/100 ($250.00) Dollars paid by him to the defendant Lane as a filing fee.

At a hearing in Greenville August 7, 1972, the parties agreed that all discovery is complete. The court was asked to proceed on the record now before the court. Among the depositions examined were those of: plaintiff Samuel J. Vandross; Vandross' driver Ernest D. Hendley; Solicitor William H. Ballenger of Anderson, South Carolina; Robert C. Snowden, a black man who had qualified as an indigent candidate for Seat No. 1 of Senatorial District No. 7 (Chester, Fairfield and Richland Counties of South Carolina); Mervine Solone, a black man who had filed as a candidate for Seat No. 2 of Senatorial District No. 7; A. W. (Red) Bethea, candidate for the Senate in Senatorial District No. 9; Jimmy Martin, candidate for Seat No. 4 in Senatorial District No. 8 (Lexington, Aiken, Bamberg, Barnwell and Edgefield Counties — called by Martin "The Big Monster"); defendant James B. Ellisor; defendant Willie Marvin Lane; Mrs. Delores C. Wolfe, Secretary to Mr. Ellisor; G. Kent Krell, a reporter for The State newspaper, Columbia, S. C.; and Mrs. Laura Medlock, wife of a candidate who is unopposed. These deposed citizens were in the office of the Election Commission when the controversial events here involved took place.

JURISDICTION

Initially plaintiff seeks (by his complaint) the jurisdictional umbrella of this forum under provisions of 28 U.S.C. § 1343(3) or (4)6, also claimed application of 42 U.S.C. § 1973c7, the Due Process Clause of the Fourteenth Amendment, 42 U.S.C. § 1985(1)8 and 42 U.S.C. § 19869. At the hearing held at Greenville (because the court was there sitting at a criminal term), plaintiff claimed jurisdiction under provisions of 42 U.S.C. § 1983.10

Plaintiff's only possible vehicle by which to attain jurisdiction is the familiar 42 U.S.C. § 1983. This court, however, is of the opinion that the right or claim alleged to have been violated in this case does not properly fit within the scope of Section 1983 and, therefore, the complaint does not state a claim upon which relief can be granted. It is apparent that the basic right asserted and the core issue raised involves the opportunity to become a candidate for State office and is not a right which rises to federal protection. In Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944), a case which also concerned candidates for State office, the court stated:

The protection extended to citizens of the United States by the privileges and immunities clause includes those rights and privileges which, under the laws and Constitution of the United States, are incident to citizenship of the United States, but does not include rights pertaining to state citizenship and derived solely from the relationship of the citizen and his state established by state law. Slaughter-House Cases, 16 Wall. 36, 74, 79 21 L.Ed. 394; Maxwell v. Bugbee, 250 U.S. 525, 538 40 S.Ct. 2, 5, 63 L.Ed. 1124; Prudential Insurance Co. v. Cheek, 259 U.S. 530, 539 42 S.Ct. 516, 520, 66 L. Ed. 1044, 27 A.L.R. 27; Madden v. Commonwealth of Kentucky, 309 U.S. 83, 90-93 60 S.Ct. 406, 409, 410, 84 L.Ed. 590, 125 A.L.R. 1383. The right to become a candidate for state office, like the right to vote for the election of state officers, Minor v. Happersett, 21 Wall. 162, 170-178 22 L.Ed. 627; Pope v. Williams, 193 U.S. 621, 632 24 S.Ct. 573, 575, 48 L.Ed. 817; Breedlove v. Suttles, 302 U.S. 277, 283 58 S.Ct. 205, 208, 82 L.Ed. 252, is a right or privilege of state citizenship, not of national citizenship which alone is protected by the privileges and immunities clause.
* * * * * *
Nor can we conclude that the action of the State Primary Canvassing Board, even though it be regarded as state action within the prohibitions of the Fourteenth Amendment, was a denial of the equal protection of the laws. The denial alleged is of the right of petitioner to be a candidate for and to be elected to public office upon receiving a sufficient number of votes. The right is one secured to him by state statute and the deprivation of right is alleged to result solely from the Board's failure to obey state law. There is no contention that the statutes of the state are in any respect inconsistent with the guarantees of the Fourteenth Amendment. There is no allegation of any facts tending to show that in refusing to certify petitioner as a nominee, the Board was
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