403 U.S. 431 (1971), 5714, Jenness v. Fortson

Docket Nº:No. 5714
Citation:403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554
Party Name:Jenness v. Fortson
Case Date:June 21, 1971
Court:United States Supreme Court

Page 431

403 U.S. 431 (1971)

91 S.Ct. 1970, 29 L.Ed.2d 554




No. 5714

United States Supreme Court

June 21, 1971

Argued March 1, 1971




Georgia law provides that any political organization whose candidate received 20% or more of the vote at the most recent gubernatorial or presidential election is a "political party." Any other political organization is a "political body." "Political parties" conduct primary elections, and the name of the winning candidate for each office is printed on the ballot. A nominee of a "political body" or an independent candidate may have his name on the ballot if he files a nominating petition signed by not less than 5% of those eligible to vote at the last election for the office he is seeking. The time for circulating the petition is 180 days, and it must meet the same deadline as a candidate in a party primary. Electors who sign a nominating petition are not restricted in any way, and there is no limitation on write-in votes on ballots.

Held: The challenge of appellants, prospective candidates and registered voters, to this election procedure was properly rejected, as it does not abridge the rights of free speech and association secured by the First and Fourteenth Amendments, and is not violative of the Fourteenth Amendment's Equal [91 S.Ct. 1971] Protection Clause. Williams v. Rhodes, 393 U.S. 23, distinguished. Pp. 434-442.

315 F.Supp. 1035, affirmed.

STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and DOUGLAS, BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ., joined. BLACK and HARLAN, JJ., concurred in the result.

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STEWART, J., lead opinion

MR. JUSTICE STEWART delivered the opinion of the Court.

Under Georgia law, a candidate for elective public office who does not enter and win a political party's primary election can have his name printed on the ballot at the general election only if he has filed a nominating petition signed by at least 5% of the number of registered voters at the last general election for the office in question.1 Georgia law also provides that a candidate for elective public office must pay a filing fee equal to 5% of the annual salary of the office he is seeking.2 This litigation arose when the appellants, who were prospective candidates and registered voters,3 filed a class action in the United States District Court for the Northern District of Georgia attacking the constitutionality of these provisions of the Georgia Election Code and seeking declaratory and injunctive relief.

A three-judge court was convened pursuant to 28 U.S.C. §§ 2281 and 2284. Thereafter the appellants filed a motion for summary judgment based upon a stipulation as to the relevant facts. The District Court granted the motion and entered an injunction with respect to the filing fee requirement, holding that this requirement operates to deny equal protection of the laws as applied to those prospective candidates who cannot afford to pay the fees. No appeal was taken from that injunctive order. With respect to the nominating petition

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requirement, the District Court denied the motion and refused to enter an injunction, holding that this statutory provision is constitutionally valid.4 From that refusal a direct appeal was brought here under 28 U.S.C. § 1253, and we noted probable jurisdiction.5

The basic structure of the pertinent provisions of the Georgia Election Code is relatively uncomplicated. Any political organization whose candidate received 20% or more of the vote at the most recent gubernatorial or presidential election is a "political party."6 Any other political organization is a "political body."7 "Political parties" conduct primary elections, regulated in detail by state law, and only the name of the candidate for each office who wins this primary election is printed on the ballot at the subsequent general election as his party's nominee for the office in question.8 A nominee of a "political body" or an independent candidate, on the other hand, may have his name printed on the ballot at the general election by filing a nominating petition.9 This petition must be signed by

a number of electors of not less than five percent. of the total number of electors eligible to vote in the last election for the filling of the office the candidate is seeking. . . .10 The total time allowed for circulating a nominating petition is 180 days,11 and it must be filed on the second Wednesday in

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June, the same deadline that a candidate filing in a party primary must meet.12

It is to be noted that these procedures relate only to the right to have the name of a candidate or the nominee of a "political body" printed on the ballot. There is no limitation whatever, procedural or substantive, on the right of a voter to write in on the ballot the name of the candidate of his choice and to have that write-in vote counted.

In this litigation, the appellants have mounted their attack upon Georgia's nominating petition requirement on two different but related constitutional fronts. First, they say that to require a nonparty candidate to secure the signatures of a certain number of voters before his name may be printed on the ballot is to abridge the freedoms of speech and association guaranteed to that candidate and his supporters by the First and Fourteenth Amendments. Secondly, they say that, when Georgia requires a nonparty candidate to secure the signatures of 5% of the voters before printing his name on the ballot, yet prints the names of those candidates who have won nomination in party primaries, it violates the Fourteenth Amendment by denying the nonparty candidate the equal protection of the laws. Since both arguments are primarily based upon this Court's decision in Williams v. Rhodes, 393 U.S. 23, it becomes necessary to examine that case in some detail.

In the Williams case, the Court was confronted with a state electoral structure that favored "two particular parties -- the Republicans and the Democrats -- and, in effect, tend[ed] to give them a complete monopoly." Id. at 32. The Court held unconstitutional the election laws of Ohio insofar as, in combination, they made it


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impossible for a new political party, even though it ha[d] hundreds of thousands of members, or an old party, which ha[d] a very small number af members, to be placed on the state ballot

in the 1968 presidential election. Id. at 24. The state laws made "no provision for ballot position for independent candidates, as distinguished from political parties," id. at 26, and a new political party, in order to be placed on the ballot, had "to obtain petitions signed by qualified electors totaling 15% of the number of ballots cast in the last preceding gubernatorial election." Id. at 24-25. But this requirement was only a preliminary. For, although the Ohio American Independent Party in the first six months of 1968 had obtained more than 450,000 signatures -- well over the 15% requirement -- Ohio had nonetheless denied the party a place on the ballot, by reason of other statutory "burdensome procedures, requiring extensive organization and other election activities by a very early date," id. at 33 --

including the early deadline for filing petitions [February 7, 1968] and the requirement of a primary election conforming to detailed and rigorous standards. . . .

Id. at 27.13

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[91 S.Ct. 1973] In a separate opinion, MR. JUSTICE DOUGLAS described the then structure of Ohio's network of election laws in accurate detail:

Ohio, through an entangling web of election laws, has effectively foreclosed its presidential ballot to all but Republicans and Democrats. It has done so initially by abolishing write-in votes, so as to restrict candidacy to names on the ballot; it has eliminated all independent candidates through a requirement that nominees enjoy the endorsement of a political party; it has defined "political party" in such a way as to exclude virtually all but the two major parties.

A candidate who seeks a place on the Ohio presidential ballot must first compile signatures of qualified voters who total at least 15% of those voting in the last gubernatorial election. In this election year, 1968, a candidate would need 433,100 such signatures. Moreover, he must succeed in gathering them long before the general election, since a nominating petition must be filed with the Secretary of State in February. That is not all: having compiled those signatures, the candidate must further show that he

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has received the nomination of a group which qualifies as a "political party" within the meaning of Ohio law. It is not enough to be an independent candidate for President with wide popular support; one must trace his support to a political party.

To qualify as a party, a group of electors must participate in the state primary, electing one of its members from each county ward or precinct to a county central committee; two of its members from each congressional district to a state central committee; and some of its members as delegates and alternates to a national convention. Moreover, those of its members who seek a place on the primary ballot as candidates for positions as central committeemen and national convention delegates must demonstrate that they did not vote in any other party primary during the preceding four years, and must present petitions of endorsement on their behalf by anywhere from five to 1,000 voters who likewise failed to vote for any other party in the last preceding primary. Thus, to qualify as a third party, a group must first erect elaborate political machinery, and then rest it upon the ranks of those who have proved both unwilling and unable to vote.

393 U.S. at 35-37.

The Court's decision with respect to this "entangling web of...

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