McLain v. Meier, Civ. No. A78-3075.

• Citation: 496 F. Supp. 462
• Decision Date: 15 July 1980
• Docket Number: Civ. No. A78-3075.
• Parties: Harley McLAIN, Plaintiff, v. Ben MEIER, Secretary of State and Allen Olson, Attorney General, Defendants.
• Court: United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota

496 F. Supp. 462

Harley McLAIN, Plaintiff, v. Ben MEIER, Secretary of State and Allen Olson, Attorney General, Defendants.

Civ. No. A78-3075.

United States District Court, D. North Dakota, Southeastern Division.

July 15, 1980.

COPYRIGHT MATERIAL OMITTED

Harley McLain, pro se, Steven L. Pevar, American Civil Liberties Union, Denver, Colo., Renee J. Homuth, Stefanson, Landberg & Alm, Ltd., Moorhead, Minn., for plaintiff.

Murray G. Sagsveen, Sol., Brian Bjella, Asst. Atty. Gen., Bismarck, N. D., for defendants.

MEMORANDUM AND ORDER

BENSON, Chief Judge.

Plaintiff Harley McLain, with the assistance of the American Civil Liberties Union, brought this action pursuant to 42 U.S.C. § 1983, challenging the constitutionality of three North Dakota election laws alleging the statutes operate to infringe upon his rights guaranteed him under the first and fourteenth amendments to the United States Constitution.

Section 16-04-20 of the North Dakota Century Code¹ requires a third party to obtain 15,000 signatures by June 1 of an election year in order to become a recognized party entitled to a separate column on the ballot.

Section 16-11-05(4) groups all individual nomination candidates in one column on the election ballot under the designation "Independent Nominations" while § 16-04-20 provides for separate columns for the Democratic, the Republican and any other party meeting the requirements of the statute.

Section 16-11-06 requires that the first or left hand column on the ballot be reserved for the party that received the most votes in the last congressional election, the second column for the party that received the second highest number of votes, and so forth. Individual nomination candidates are not mentioned.

The case is before the court on the parties' cross motions for summary judgment. At a hearing, the parties stated they had no additional evidence to present and that the court could treat as evidence the affidavits submitted in support of the motions.

The factual background of the case is as follows. At some time prior to June 1, 1978, plaintiff, a vegetable farmer who opposes the use of chemicals in farming, organized a political action organization known as "Chemical Farming Banned." In early August, 1978, plaintiff sought a petition from the Secretary of State which would have enabled him to run for North Dakota's lone seat in the United States House of Representatives as a "new" or "third" party candidate under the party designation "Chemical Farming Banned." The Secretary advised plaintiff that the filing deadline for petitions to place a new political party on the ballot had passed. The time for filing petitions for individual nominations was still open and plaintiff filed a timely petition and qualified as an individual nomination candidate for Congress in the 1978 election. Section 16-03-02 permits an individual nomination candidate to designate in not more than five words the party or principle he represents. Plaintiff's name appeared in the "independent" column on the ballot over the designation "Chemical Farming Banned."

The day before the November 7 election, plaintiff, acting pro se, commenced an action seeking declaratory and permanent injunctive relief and a temporary restraining order to stop the election, on the ground that the ballot to be used discriminated against independent candidates and candidates of small minority parties. The court denied the application for a temporary restraining order and the election was held.² On motion of defendants the complaint was later dismissed for failure to state a claim. Plaintiff appealed the ruling.³ The Court of Appeals vacated the dismissal and remanded the case to this court for further proceedings. McLain v. Meier, 612 F.2d 349 (8th Cir. 1979). The case is now before this court on an amended complaint prepared by the American Civil Liberties Union.

THIRD PARTY BALLOT ACCESS LAW

Section 16-04-20 states in pertinent part as follows:

The following political parties shall be provided with separate columns on primary election ballots:

1. The Republican party;

2. The Democratic party;

3. Any party which cast five percent of the total votes cast for governor at the last general election; and

4. Any other party if a petition signed by fifteen thousand or more electors of this state is filed with the secretary of state before four o'clock p. m. on June first of any primary election year, asking that a column be provided for such party, naming it, and stating the platform principles thereof. If such petition is mailed it shall be in the possession of the secretary of state before four o'clock p. m. on June first. Candidates of such party shall be entitled to the same rights and privileges as those of other parties.

Plaintiff contends that the first and fourteenth amendments are violated by the unreasonable burden imposed on new political parties by the 15,000 signature requirement,⁴ the June 1 filing deadline and the primary election requirements of § 16-04-20(4).⁵

The initial inquiry in such a challenge is the level of scrutiny to which the statute must be subjected, since the court must examine, under the appropriate test, the state interests advanced by the statute and the relationship between those interests and the means employed to further them.

In reviewing state classifications, courts generally adhere to the rule that a state does not act unlawfully if the classification is rationally related to a legitimate government objective. See Dandridge v. Williams, 397 U.S. 471, 486, 90 S.Ct. 1153, 1162, 25 L.Ed.2d 491 (1970); Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 67, 31 S.Ct. 337, 55 L.Ed. 369 (1911). This has been referred to as the rational basis test. When classifications are based upon certain "suspect" criteria or affect "fundamental rights," the classification will be subjected to strict scrutiny and the state must show a compelling and substantial interest to justify it. Dunn v. Blumstein, 405 U.S. 330, 335, 92 S.Ct. 995, 999, 31 L.Ed.2d 274 (1972); Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600 (1969).

The right to be a candidate for public office is not viewed as a fundamental right which in and of itself warrants strict scrutiny. Bullock v. Carter, 405 U.S. 134, 142-43, 92 S.Ct. 849, 855, 31 L.Ed.2d 92 (1972). Restrictions on ballot access, however, burden two distinct and fundamental rights, "the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively." Election Bd. v. Socialist Workers Party, 440 U.S. 173, 184, 99 S.Ct. 983, 990, 59 L.Ed.2d 230, 241 (1979). However, not every limitation or incidental burden on the exercise of voting rights is subject to a stringent standard of review. Bullock v. Carter, 405 U.S. at 143, 92 S.Ct. at 855. It is only "substantial burdens" on the right to vote or to associate for political purposes which are constitutionally suspect and invalid under the first and fourteenth amendments unless essential to serve a compelling state interest. Storer v. Brown, 415 U.S. 724, 729, 94 S.Ct. 1274, 1278, 39 L.Ed.2d 714 (1974). The right to vote is recognized as a fundamental right and if a statute impinges upon the status of candidacy so as to have, ". . . a real and appreciable impact on the exercise of the franchise . . .," Bullock v. Carter, 405 U.S. at 144, 92 S.Ct. at 856, "the law must be closely scrutinized." Id. But only if such a "real and appreciable impact" is shown, should the court abandon the rational basis test. Antonio v. Kirkpatrick, 579 F.2d 1147, 1149 (8th Cir. 1978).

"In approaching candidate restrictions, it is essential to examine in a realistic light the extent and nature of their impact on voters." Bullock, supra at 143, 92 S.Ct. at 856. To do so, it is also necessary to examine the ballot access alternatives available.

North Dakota conducts primary, general and special elections. Most of the elections are partisan, i. e., conducted along party lines. All recognized political parties are required to enter the primary election held on the first Tuesday in September of each year in which a general election is held. Section 16-04-01. General elections are held on the Tuesday immediately following the first Monday in November of each even numbered year. Section 16-06-01.

As indicated, § 16-04-20 assures separate "party columns" on the primary and general election ballots to the Democratic and the Republican parties. A separate party column is also afforded to any third party able to poll in the preceding election, 5% of the total vote cast for governor. Id. A "new" third party may secure a separate party column if it files a petition containing at least 15,000 signatures of qualified electors before June 1 of the year of a general election. Id.

A person who wishes to run as an independent, or a person who wishes to run as a representative of an organized political group which did not qualify as a party under § 16-04-20, can gain access to the ballot by filing an individual nominating petition with the Secretary of State not less than 40 days before the general election, signed by at least 300 qualified electors. Sections 16-03-02 and 16-05-03. Such a candidate need not enter the primary election and may have his name followed by a statement of five words or less setting out the "party or principle" he represents. Section 16-03-02.

Plaintiff relies principally upon Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968) and MacBride v. Exon, 558 F.2d 443 (8th Cir. 1977), in urging the court to apply the strict scrutiny standard of review, and to require the state to show a compelling government interest to justify the signature and filing date requirements of § 16-04-20.

In Williams, supra, under Ohio election laws, a new political party seeking ballot position had to obtain petitions signed by...