Bachrach v. Secretary of Com.

• Citation: 415 N.E.2d 832,382 Mass. 268
• Parties: George BACHRACH v. SECRETARY OF the COMMONWEALTH.
• Decision Date: 09 January 1981
• Court: United States State Supreme Judicial Court of Massachusetts

Page 832

415 N.E.2d 832

382 Mass. 268

George BACHRACH v. SECRETARY OF the COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 11, 1980.

Decided Jan. 9, 1981.

Daniel A. Taylor, Boston (Charles C. Ames, Boston, with him), for the plaintiff.

Alexander G. Gray, Jr., Asst. Atty. Gen., for the defendant.

Before HENNESSEY, C. J., and BRAUCHER, KAPLAN, WILKINS and LIACOS, JJ.

KAPLAN, Justice.

George Bachrach, plaintiff, a candidate in the general election of November, 1980, for the office of State senator for the Middlesex-Suffolk district, commenced the present action in the county court against the Secretary of the Commonwealth, defendant, alleging that certain ballot legislation of 1979 was invalid under the State and Federal Constitutions, and praying that, upon a declaration to that effect, the defendant Secretary be enjoined from refusing to place the term "Independent" on the ballot as the plaintiff's political designation, and from placing the term "Unenrolled" on the ballot as such designation. In due course the plaintiff moved for summary judgment in his favor upon the pleadings and a statement of agreed facts, and the matter was then, upon joint motion, reserved and reported by the single justice, without decision, to the full bench. Argument was heard on September 11, 1980, and as it was represented that time was short to print and distribute ballots and make other preparations for the election, the court, after consideration, entered its order on September 18 in favor of the plaintiff enjoining the defendant as prayed, with opinion or opinions to follow.

1. The Case. We outline the record made on summary judgment, first giving the statutory background. ¹ For many years before 1979, the Commonwealth recognized and made provision, in terms, for Independent candidates, and for Independent voters as well. Independent candidates were those not nominated by a "political party," as defined. ² In seeking a place on the ballot for an office such as State senator, an Independent candidate had to obtain the signatures on his nomination papers of voters in number not less than 2% of the votes cast in that district for Governor at the previous gubernatorial election. G.L. c. 53, § 6. The nomination papers would carry the candidate's political designation, chosen by him, in not more than three words. The words could not consist of the name of a "political party," that designation being reserved for the party candidate, but otherwise any word or words could be used; the single word Independent could be used. G.L. c. 53, § 8. ³ The same rule held for the designation of an Independent candidate on the ballot, if he qualified to appear there. G.L. c. 54, § 41.

Statute 1979, c. 745, approved November 14, 1979, by its §§ 2 and 7 amended respectively G.L. c. 53, § 8, and G.L. c. 54, § 41, above cited, to impose the following important further restrictions: the word Independent was forbidden as any part of the designation on nominating petitions or on the ballot, and "(f) ailure to make a political designation shall result in the term 'Unenrolled' being used" on the ballot. ⁴ By additional provisions of the 1979 legislation the word Unenrolled was substituted for Independent at other places in the election statutes. ⁵

To turn now to the particular facts, the plaintiff Bachrach before 1979 considered himself a Democrat. When he started his campaign in early 1980, he described himself variously as a Democrat, Independent Democrat, and Independent. But about February 1980 he left the Democratic party, formally changed his voter enrollment from Democratic to Unenrolled, ⁶ and chose not to be a candidate in the Democratic party primary. He felt he did not share the political or ideological views of the incumbent Democratic President, Governor, or State senator for his district. Accordingly, in his campaign literature and public statements he consistently described himself as Independent, the designation which to him best expressed his political views and "direct(ed) voters' attention to a progressive need for competence and effectiveness in government, uninfluenced by party or ideological constraint." ⁷

When he forwarded his nomination papers, including certified signatures, to the defendant with a letter dated April 23, 1980, the plaintiff insisted that he be designated Independent on the election ballot. In reply, the defendant called attention to St. 1979, c. 745, and said that the plaintiff was thereby forbidden the designation Independent on his nomination papers and on the ballot, and that Unenrolled would appear as the plaintiff's designation on the ballot if he declined to adopt a designation acceptable under the statute. ⁸

It was this response of the defendant that finally provoked the present litigation; and it is necessary to add that the parties in their agreed facts sought to aid the court with certain propositions about political usage or understanding of which we mention the following in paraphrase. Independent had no consistent or uniform meaning except a customary meaning as referring to persons who do not formally affiliate with any political party. Many voters assumed individuals designated Independent had generally liberal political or ideological beliefs, but many thought such individuals had generally conservative, generally moderate, or generally progressive beliefs. Independent had a generally positive connotation. "Citizens Party," which was to appear as a designation of a candidate on the 1980 ballot, had no consistent or uniform meaning. The designations "Against Politician's Raise" and "The Anderson Coalition," also to appear as designations on that ballot, did not connote associations with established organizations having structures or traditions of political beliefs. The terms Democratic and Republican did connote such associations. Finally (here we draw on the defendant's pleading), as of February, 1980, of the registered voters in the Commonwealth, 45.9% were enrolled in the Democratic party, 14.2% in the Republican party, and 39.9% were Unenrolled.

2. Discussion. We state the grounds of our decision which in effect obliged the defendant Secretary to give the plaintiff Bachrach the designation Independent on the 1980 election ballot, despite the contrary provision of the 1979 statute.

(a) Rights of expression and association; equal protection. An election ballot is a State-devised form through which candidates and voters are required to express themselves at the climactic moment of choice. See Anderson v. Martin, 375 U.S. 399, 402, 84 S.Ct. 454, 455, 11 L.Ed.2d 430 (1964). ⁹ Whether inscribed on a piece of paper or set out in connection with the levers of a machine, the ballot is necessarily short; it cannot usually permit of discursive statements by candidates, and must call for responses by the electors simple enough to be counted. ¹⁰ Within these natural limitations, a State has discretion in prescribing the particular makeup of the ballot for its various elections (see Opinion of the Justices, 368 Mass. 819, 821, 333 N.E.2d 380 (1975)), and in fact the customs and practices as to these arrangements have varied from State to State. Inescapably, however, the discretion must in the end be exercised in subordination to relevant constitutional guaranties. See Bullock v. Carter, 405 U.S. 134, 140-141, 92 S.Ct. 849, 854-855, 31 L.Ed.2d 92 (1972); Gould v. Grubb, 14 Cal.3d 661, 669, 122 Cal.Rptr. 377, 536 P.2d 1337 (1975).

With respect to the political designations of the candidates on nomination papers or on the ballot, it is quite possible that a State could go some distance in washing its hands of the business and leaving it to the educational efforts of the candidates themselves, or their sponsors, during the campaigns. See Libertarian Party of Cal. v. Eu, 102 Cal.App.3d 446, 455, 162 Cal.Rptr. 381 (1980). ¹¹ There is certainly much useful information about parties and candidates that a State is free not to mention or elicit on the ballot, even if physical limitations do not prevent. See New York State Democratic Party v. Lomenzo, 460 F.2d 250, 251-252 (2d Cir. 1972) (in primary election of delegates to national convention, State need not permit statements on ballot of candidates' presidential preferences). But as soon as the State admits a particular subject to the ballot, and commences to manipulate the content, to legislate what shall and shall not appear, it must take account of the provisions of the Federal and State Constitutions regarding freedom of speech and association, together with the provisions assuring equal protection of the laws. See Riddell v. National Democratic Party, 508 F.2d 770, 775-779 (5th Cir. 1975). Cf. Minnesota Fifth Cong. Dist. Independent-Republican Party v. State ex rel. Spannaus, 295 N.W.2d 650, 652-655 (Minn. 1980). ¹²

In the present case the State did admit subject matter to the ballot and then sought to manipulate it, and the regulation of content that was imposed seems to us repugnant to constitutional principles. We may accept that the candidates of political parties (see note 2) appear on the ballot by their party names, while others, not having an affiliation with such a party, are permitted designations of their choosing of not more than three words. ¹³ But then the 1979 legislation went on to proscribe the term Independent whether offered as a sole designation or as one of a two- or three-word designation. Nominally the outlawing of the word applied across the board to all candidates. Viewed that way, the prohibition would be unlawful on much the same basis as a statute which might undertake to forbid political candidates in their campaigning to discuss a given subject, e. g., religion or nuclear power (cf. Consolidated Edison Co. of N. Y. v. Public Serv. Comm'n of N. Y., 447 U.S. 530, 537 - 540, 100 S.Ct. 2326, 2333-2334, 65 L.Ed.2d 319 (1980)), or, indeed, to forbid the use during the campaign of some...