Baer v. Meyer, Civ. A. No. 82-C-29.

• Decision Date: 10 January 1984
• Docket Number: Civ. A. No. 82-C-29.
• Citation: 577 F. Supp. 838
• Parties: Arlette BAER, et al., Plaintiffs, v. Natalie MEYER, Secretary of State for the State of Colorado; and The State of Colorado, Defendants.
• Court: U.S. District Court — District of Colorado

577 F. Supp. 838

Arlette BAER, et al., Plaintiffs, v. Natalie MEYER, Secretary of State for the State of Colorado; and The State of Colorado, Defendants.

Civ. A. No. 82-C-29.

United States District Court, D. Colorado.

January 10, 1984.

Richard M. Borchers, Westminster, Colo., for plaintiffs.

Jill A. Gross, Asst. Atty. Gen., General Legal Services Section, Denver, Colo., for defendants.

MEMORANDUM OPINION AND ORDER

CARRIGAN, District Judge.

This case involves an attack upon the constitutionality of Colorado's election laws and registration practices. Plaintiffs Arlette Baer, Bernard Raizen, Don Rickey, Jr., Paul Grant, Ruth Bennett, the Citizens Party of the State of Colorado (hereafter "Citizens Party"), and the Libertarian Party of Colorado (hereafter "Libertarian Party") sued for a declaratory judgment and a permanent injunction. They assert rights protected under 42 U.S.C. § 1983 and the First and Fourteenth Amendments to the United States Constitution. The original defendants were Mary Estill Buchanan, formerly Secretary of State of Colorado, and the State of Colorado.¹ Defendant Buchanan was sued only in her official capacity. In January, 1983, Buchanan was succeeded in office by Natalie Meyer, and Ms. Meyer has been substituted as a defendant.

Plaintiffs claim that ballot access restrictions in the Colorado Election Code of 1980 C.R.S. § 1-1-101, et seq., (hereafter "Colorado Election Code" or "Code") and Colorado's voter registration procedures infringe upon their rights to vote and to political association, thus violating First and Fourteenth Amendment rights. This memorandum opinion constitutes my findings of fact and conclusions of law as required by Fed. R.Civ.P. 52(a) and 65(d). Jurisdiction is founded on 28 U.S.C. §§ 1331 and 1343(3).

I. General Background and Issues Presented.

Plaintiffs Baer, Raizen and Rickey are members of the plaintiff Citizens Party. Formed in 1980 as an unincorporated association, the Citizens Party supports the national Citizens Party's programs and policies. It supported Barry Commoner's presidential candidacy in 1980. The Citizens Party also supported congressional candidates, including Robert McFarland, M.D., who ran for Congress in Colorado's Second Congressional District.

Plaintiffs Grant and Bennett are members of the plaintiff Libertarian Party. Founded in Westminster, Colorado, the Libertarian Party achieved Colorado ballot designation for presidential electors in 1976 and 1980. In 1982, the plaintiff Grant ran as the Libertarian candidate for Governor of Colorado receiving over two percent of the total votes cast for that office. Plaintiff Bennett is the Libertarian Party's state chairperson, and has sought election to the Colorado House of Representatives.

The plaintiffs attack the Colorado Election Code provision defining "political parties," contending that it creates an impermissibly oppressive burden on minority parties attempting to establish their viability as political forces within the political party election system. They argue that meeting the statutory definition of "political party" is crucial to attaining political effectiveness, since only recognized "political parties" can take advantage of Code provisions granting parties ballot access without the burden of circulating a petition for each and every candidate supported by the party. Plaintiffs contend that the provisions under which they must operate effectively preclude their obtaining the support necessary to gain recognition as a "political party" under the Code. Further, they contend that the voter registration procedures adopted by the defendant Secretary of State put minor parties at a significant political disadvantage, not only in competing with the Democratic and Republican parties for votes, but also in attempting to satisfy the Code's threshold requirements for recognition as "political parties."

Thus the plaintiffs attack not only the election statutes, but also the practices followed pursuant to those statutes. Their complaint is that their rights have been violated by the aggregate effects of the targeted Code provisions and the procedures followed in applying and enforcing those provisions. The arguments addressed to various particular provisions of the Code, and to various election procedures, necessarily are interdependent.

Defendants admit that the statutory provisions and election practices challenged by the plaintiffs restrict the efforts of minor parties to place their candidates on the ballot and to function as political parties in Colorado. Defendants contend, however, that the restrictions are necessary to protect state interests in efficient and serious elections. Such state interests, of course, have been recognized by the United States Supreme Court. Thus the defendants deny the plaintiffs' claims of unconstitutionality.

II. Specific Findings and Conclusions.

In cases challenging state election laws affecting minority party rights to ballot access, the Supreme Court has held that a state must establish that its election law classifications are necessary to serve a compelling state interest. Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 184, 99 S.Ct. 983, 990, 59 L.Ed.2d 230 (1979); American Party of Texas v. White, 415 U.S. 767, 780, 94 S.Ct. 1296, 1305, 39 L.Ed.2d 744 (1974); Williams v. Rhodes, 393 U.S. 23, 31, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968). As the Supreme Court stated in Williams v. Rhodes,

"In the present situation the state laws place burdens on two different, although overlapping, kinds of 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. Both of these rights, of course, rank among our most precious freedoms. We have repeatedly held that freedom of association is protected by the First Amendment. And of course this freedom protected against federal encroachment by the First Amendment is entitled under the Fourteenth Amendment to the same protection from infringement by the States. Similarly we have said with reference to the right to vote: `No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.'" 393 U.S. 23, 30-31, 89 S.Ct. 5, 10 (footnotes omitted).

Moreover, because of the primacy of the rights burdened, the state may not adopt a particular measure if significantly less burdensome alternatives would achieve its legitimate ends. See Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. at 185, 99 S.Ct. at 990-991; American Party of Texas v. White, 415 U.S. at 781, 94 S.Ct. at 1306.

On the other hand, a state's interest in protecting its electoral process has been recognized as substantial. See Clements v. Fashing, 457 U.S. 957, 965, 102 S.Ct. 2836, 2844-2845, 73 L.Ed.2d 508 (1982); Jenness v. Fortson, 403 U.S. 431, 442, 91 S.Ct. 1970, 1976, 29 L.Ed.2d 554 (1971). Because of this recognition, the cases have focused on whether there exist less burdensome alternatives than the measures adopted by the state. Where such alternatives exist, the challenged election laws should be deemed to be unnecessarily oppressive, and the courts have a duty to declare them unconstitutional. Arutunoff v. Oklahoma State Election Board, 687 F.2d 1375, 1379 (10th Cir.1982). Of course, this sort of analysis necessarily is comparative. Each case "must be resolved on its own facts after due consideration is given to the practical effect of the election laws of a given state, viewed in their totality." Id.

Defendants argue that the standard of review just stated has been modified by Clements v. Fashing, 457 U.S. 957, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982), to give greater deference to the state's interest in regulating its elections. Defendants misapprehend the Supreme Court's discussion of the standard of review in Clements. Justice Rehnquist's opinion for the court represented only a plurality of the justices in part III, which discussed the appropriate standard of review. Further, part III itself distinguished Clements from the Supreme Court's earlier cases on ballot access and voting rights. Clements concerned a state's attempt to restrict office-seeking by persons already holding state office. Understandably, both the officeseekers' and the state's interests presented in Clements were found to differ from the balance already struck in the existing line of ballot access and voting rights cases.

Finally, the defendants' argument fails to take into account the constitutional difficulty presented in all cases where minority rights are impaired by legislative action. As intimated in United States v. Carolene Products Co., 304 U.S. 144, 152, n. 4, 58 S.Ct. 778, 783 n. 4, 82 L.Ed. 1234 (1938), one of the primary justifications for heightened scrutiny of such legislation is the concern that legislative bodies, being creatures of the majority, may not be as responsive to minority rights as the Constitution demands. This practical consideration was recognized in Circuit Judge McWilliams' majority opinion in Arutunoff v. Oklahoma State Election Board, 687 F.2d 1375, 1378 (10th Cir.1982), where he wrote:

"A state's election laws, however, cannot operate so as to freeze the political status quo. They must recognize the fact that there is a constant fluidity in the fortunes of political parties, particularly minor political parties. Thus, the courts have invalidated state ballot access laws that are oppressive and make it virtually impossible for any but the two major parties to achieve ballot positions for their candidates." (citations omitted).

To put it another way, minority interests cannot seek legislative remedies with the same likelihood of success as majority interests. In no...