Macbride v. Exon

• Decision Date: 29 June 1977
• Docket Number: No. 76-1925,76-1925
• Parties: Roger MacBRIDE, Gayle R. Arch, Burton Jay, Guy Curtis and Daniel H. Haak, Appellees, v. The Honorable J. James EXON, Governor of the State of Nebraska, and the Honorable Allen J. Beermann, Secretary of State of the State of Nebraska, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 443

558 F.2d 443

Roger MacBRIDE, Gayle R. Arch, Burton Jay, Guy Curtis and Daniel H. Haak, Appellees, v. The Honorable J. James EXON, Governor of the State of

Nebraska, and the Honorable Allen J. Beermann,

Secretary of State of the State of

Nebraska, Appellants.

No. 76-1925.

United States Court of Appeals,

Eighth Circuit.

Submitted March 15, 1977.

Decided June 29, 1977.

Terry R. Schaaf, Asst. Atty. Gen., Lincoln, Neb., for appellants; Paul L. Douglas, Atty. Gen., Lincoln, Neb., on brief.

Thomas J. Culhane, Omaha, Neb., for appellees.

Before MATTHES, Senior Circuit Judge, and WEBSTER and HENLEY, Circuit Judges.

HENLEY, Circuit Judge.

In 1976 appellee, Roger MacBride, and David Bergland were, respectively, the duly nominated candidates of the Libertarian Party for the offices of President and Vice President of the United States. Efforts of Nebraska supporters of the Libertarian Party to place MacBride's name on the Nebraska general election ballot were frustrated by the application to him of the provisions of Neb.Rev.Stat. § 32-526, ¹ which relates to the formation of new political parties in the state. When it developed that the Secretary of State of Nebraska was not authorized by Nebraska law to put MacBride's name on the ballot, this suit was instituted only two weeks prior to September 8, 1976, which was the last day on which the Secretary could certify the official general election ballot to local election officials.

Submission of the case was expedited and it was heard on August 31 along with a similar suit that had been filed by supporters of former Senator Eugene J. McCarthy, who was running for the presidency as an independent. ² It was held in both cases that § 32-526 unconstitutionally restricts access to the ballot of the presidential candidates of newly formed third parties and of independent candidates for the presidency and is violative of the first and fourteenth amendments to the Constitution of the United States. Specific relief designed to benefit MacBride and McCarthy was granted. The opinion and judgment in the McCarthy case were filed on September 1, 1976, and the memorandum and judgment in the instant case were filed on September 3, 1976.

The defendants in this case, who are the Governor and Secretary of State of the State of Nebraska, have appealed contending that maintenance of the suit was barred by the eleventh amendment, that the district court erred in not applying the "abstention doctrine," and that, in any event, the Nebraska statutory scheme which will be described is not unconstitutional. ³

With certain exceptions not here pertinent, candidates for office who are to be voted on in a general election must have secured nomination by means of a party primary election or by petition. § 32-503.01. If a person can obtain a sufficient number of signatures of qualified electors to nominating petitions he may run as an independent for any state, county or local office, but he may not run as an independent for the office of either President or Vice President of the United States. See § 32-504.

Primary elections are held on the Tuesday following the second Monday in May in each even numbered year, and in the years in which presidential elections are held, there is a presidential primary which is held at the same time as that at which the ordinary primary is conducted. §§ 32-505 and 506. General elections are held on the Tuesday following the first Monday in November of each even numbered year. § 32-601. In 1976 the primary elections were held on May 11, and the general election was held on November 2.

After a party primary has been held, the party must hold county conventions during the first seven days in June following the primary. § 32-550. At such conventions delegates to the party's state convention are chosen, and that convention is held not later than the first day of October following the county conventions. One of the functions of the state convention is to choose the party's presidential and vice presidential electors. § 32-556. The names of those electors are certified to the Governor and Secretary of State. Id.

At least sixty days prior to the general election in a presidential election year the appropriate officers of the various national party conventions are to certify the names of the parties' nominees for President and Vice President to the Secretary of State, and it is his duty to see that those names appear on the general election ballot. § 32-561.

In 1976 the Libertarian Party was not a recognized party in Nebraska, and if the names of its candidates for President and Vice President were to appear on the November ballot, the party had to qualify as a "new party" under the provisions of § 32-526.

That section provides, among other things, that a political party can gain ballot position as a new party if it files at least ninety days prior to the next primary election petitions signed by qualified electors representing at least 1% of the total number of votes cast for governor in the last general election. Further, the signatures must be so distributed as to include electors equalling in number at least 1% of the total vote cast for governor in the last preceding general election in at least one-fifth of the counties in the State.

Assuming that the requirements of § 32-526 are met, the party must then comply with the other statutory requirements that have been abstracted. When the relevant sections of the Nebraska election code are read together, it is evident that the Secretary of State has no authority to include the name of an independent candidate for President on the general election ballot, and he cannot put the name of an individual on the ballot as a party candidate for President or Vice President unless he has been named as a candidate by an existing recognized party or by a new party which has achieved recognition in compliance with § 32-526 and related statutes.

In order for the Libertarian Party to comply with § 32-526 it would have been required to submit petitions containing the requisite number of signatures to the Secretary of State not later than February 11, 1976, some nine months prior to the November general election. That, the Libertarian Party did not do and probably would not have been able to do. ⁴

It was stipulated that on August 24, 1976 the plaintiff Burton Jay, a qualified elector of Nebraska who desired to be named as one of the Libertarian Party's presidential electors, presented to the Secretary of State 236 petitions for nomination of electors for MacBride and Bergland bearing the purported signatures of 2907 registered voters.

The Secretary marked the petitions "Received," but evidently advised Mr. Jay that the Secretary had no authority to place the names of MacBride and Bergland on the ballot on the basis of the petitions. This suit was filed on August 25.

The defendants immediately moved to dismiss the complaint for lack of jurisdiction and for failure to state a claim upon which relief could be granted, and the defendants also called upon the district court to abstain from further action. That motion was denied.

Relying on American Party of Texas v. White, 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974); Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971); and Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968), the district court adjudicated that:

The statutory provisions of the State of Nebraska regarding elections, including Neb.Rev.Stat. 32-504, 32-526, 32-556, and 32-4,108, and the related statutes, which require that a political party seeking to have its candidate for the office of President of the United States placed on the November general election ballot must be certified ninety days in advance of the state's presidential primary are unconstitutional to that extent.

The district court then granted coercive relief. The Secretary of State was directed to make a good faith determination within the time limit available to him whether the petitions before him reflected that the candidacy of MacBride had a "satisfactory level of community support." If the Secretary should so determine, he was directed to put MacBride's name on the ballot. But, if in good faith the Secretary could not make such a determination, he was not required to put the name on the ballot.

As stated, the Secretary was required by Nebraska law to certify the ballot by September 8, 1976. The judgment was filed on Friday, September 3; Monday, September 6, was Labor Day. In the circumstances the Secretary had no real chance to check the signatures on the petitions or to determine whether the persons signing the petitions were registered voters. Confronted with that situation the Secretary accepted the signatures as being the genuine signatures of registered voters, found that the level of support shown by the signatures was satisfactory, and caused the name of MacBride to appear on the ballot.

The election was held in due course, and notice may be taken of the fact that the Libertarian Party candidate did not carry Nebraska or any other state. The coercive feature of the judgment has gone out of the case, but the fact that the election has taken place does not render the controversy about the constitutionality of the Nebraska statutes moot. Storer v. Brown, 415 U.S. 724, 737 n. 8, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974); see also Lendall v. Bryant, 387 F.Supp. 397, 399 (E.D.Ark.1975).

There is no doubt that the district court had jurisdiction of the case under 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983 unless maintenance of the action was prohibited by the eleventh amendment. We find the defendants' eleventh amendment claim to be without merit. This is not a suit against the state, and neither the relief sought nor that granted affects the funds, revenues or property of the state. The object of the suit was to enjoin the defendants from continuing to enforce the challenged Nebraska statutes and to...