Baer v. Meyer, 84-1056

• Citation: 728 F.2d 471
• Decision Date: 01 March 1984
• Docket Number: No. 84-1056,84-1056
• Parties: Arlette BAER; Bernard Raizen; Don Rickey, Jr.; the Citizens Party of the State of Colorado; Paul Grant; Ruth Bennett; and the Libertarian Party of the State of Colorado, Plaintiffs-Appellees, v. Natalie MEYER, Secretary of State for the State of Colorado, and the State of Colorado, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 471

728 F.2d 471

Arlette BAER; Bernard Raizen; Don Rickey, Jr.; the

Citizens Party of the State of Colorado; Paul

Grant; Ruth Bennett; and the

Libertarian Party of the State

of Colorado, Plaintiffs-Appellees, v. Natalie MEYER, Secretary of State for the State of Colorado, and the State of Colorado, Defendants-Appellants.

No. 84-1056.

United States Court of Appeals,

Tenth Circuit.

March 1, 1984.

Cheryl J. Hanson, Asst. Atty. Gen., Denver, Colo. (Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Denver, Colo., with her on briefs), for defendants-appellants.

Richard M. Borchers, Westminster, Colo. (Wayne E. Stockton and David Miller, American Civil Liberties Union of Colorado, Denver, Colo., with him on briefs), for plaintiffs-appellees.

Before McKAY, LOGAN and SEYMOUR, Circuit Judges.

PER CURIAM.

This action was brought under 42 U.S.C. Sec. 1983 (1976) by the Citizens Party of Colorado and the Libertarian Party of Colorado, together with certain citizens who support the organizational and political objectives of these two parties. The suit asserts that the Colorado statutes governing the organization and ballot access of political parties are unconstitutional because the State's system improperly burdens the availability of political opportunity for these two political organizations and their supporters during Colorado elections. The district court, 577 F.Supp. 838 (D.C.Colo.1984), agreed and enjoined the State from enforcing pertinent provisions of the Colorado Election Code against plaintiffs.

Colorado law defines "political party" as "any political organization which at the last preceding gubernatorial election was represented on the official ballot either by regular party candidates or by individual nominees only if it cast for its gubernatorial candidate at least ten percent of the total gubernatorial vote cast in the state at such election." Colo.Rev.Stat. Sec. 1-1-104(18) (1980). A "political organization" is "any group of qualified electors who, by petition for nomination of an independent candidate as provided in section 1-4-801, places upon the official general election ballot nominees for public office." Id. Sec. 1-1-104(17) (1980). Currently the Republican Party and the Democratic Party are the only "political parties" in Colorado.

Plaintiffs allege that the State system creates unfair or unnecessary burdens on minority political associations in three respects. First, plaintiffs claim that the enforcement of section 1-4-801(a) of the Colorado Election Code, Colo.Rev.Stat. Sec. 1-4-801(a) (1980) ¹, operates to unfairly prevent the supporters of plaintiff organizations from knowing who their endorsed candidates are and from promoting their minor party interests. Under the statutory scheme, only political parties as defined by State law can prevent unendorsed candidates from running under the party name. Because plaintiff organizations have not obtained this status, unendorsed candidates may designate themselves as representing the Citizens Party or the Libertarian Party, thereby diluting the voting strength of the plaintiff parties. Second, plaintiffs claim that defendants have unreasonably burdened the ability of plaintiffs' supporters to note their support of the Citizens and Libertarian parties on their voter registration forms. Colorado permits registrants to indicate on their registration form their party affiliation only if the affiliation is with a political party as defined by State law. Otherwise the elector must register as "unaffiliated" under section 1-2-203(2)(j) of the Colorado Election Code. ² This practice denies plaintiff organizations the opportunities made available to the major parties to acquire from or through the Secretary of State specific information about party support for purposes of campaigning and political organization. The third claim raises the inability of persons supporting political organizations other than those meeting the Colorado definition of political party to have their own poll watchers present during the elections.

The root of plaintiffs' complaint is the structure of the Colorado statute, which distinguishes between political parties and political organizations. See Colo.Rev.Stat. Sec. 1-1-104(17)-(18) (1980). That structure results in discrimination between those supporting the existing majority parties, Democratic and Republican, and those supporting the plaintiffs Citizens and Libertarian parties.

Ballot access cases are never simple. Electoral schemes vary widely from state to state, and thus no prior factual setting provides a litmus for determining whether a particular scheme violates constitutional standards when dealing with the life blood of representative government--the voting process. However, the Supreme Court has summarized the fundamental inquiry with which we must begin in ballot access cases. In Anderson v. Celebrezze, --- U.S. ----, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983), the Court said:

"Our ballot access cases ... focus on the degree to which the challenged restrictions operate as a mechanism to exclude certain classes of candidates from the electoral process. The inquiry is whether the challenged restriction unfairly or unnecessarily burdens 'the availability of political opportunity.' " Clements v Fashing, 457 U.S. 957, 964 [102 S.Ct. 2836, 2844, 73 L.Ed.2d 508] (1982) (plurality opinion), quoting Lubin v. Panish, supra, 415 U.S. at 716 [94 S.Ct. 1315, 1320, 39 L.Ed.2d 702 (1974) ].

Id. 103 S.Ct. at 1572 (footnote omitted).

In considering detailed challenges to state regulatory processes, we must give due regard to the state's duty to provide "substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes." Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 1279, 39 L.Ed.2d 714 (1974). At the same time we must bear in mind that "[n]o 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." Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 534, 11 L.Ed.2d 481 (1964). The watchwords in balancing the state's interest against the interest of the citizen are whether the means adopted "unfairly or unnecessarily" burden the citizens' political opportunity. Anderson v. Celebrezze, 103 S.Ct. at 1572. Thus, the issue before us is whether Colorado's ballot access system unfairly or unnecessarily burdens its citizens' access to political opportunity.

I. Party Designation and Name Protection.

Plaintiffs do not argue that the Colorado election laws unconstitutionally impede their candidates' actual access to the ballot. The procedure for placing a candidate who is not affiliated with a political party on the general election ballot in Colorado is less onerous than the Georgia procedure the Supreme Court upheld in Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971). Plaintiffs focus their attack by arguing that only political parties are entitled to name protection on the general election ballot, and that therefore any candidate who gets on the general election ballot by petition may choose the description "Libertarian Party," regardless of his or her relationship to the Libertarian Party of Colorado. The district court held the Colorado election scheme unconstitutional based in part on its findings that an unauthorized candidate can dilute the strength of minority parties by using their name.

The principles of American jurisprudence caution us not to decide a constitutional issue if a proper construction of a statute or an interpretation of existing case law could be controlling. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-48, 56 S.Ct. 466, 482-83, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). Plaintiffs' challenge to the lack of name protection and party designation on the ballot does not require us to reach the merits of the constitutional argument because Colorado's Secretary of State has not followed the established legal principles of that State. Thus, we may dispose of this issue by properly construing existing Colorado law, and need not decide the federal constitutional question raised.

In construing a substantially identical predecessor section of the Colorado Code, the Supreme Court of Colorado held:

that where a party is organized, although it may not have sufficient strength to make nominations by convention, it is entitled to have whatever proceedings it may take with reference to making nominations protected in the same way that nominations by convention are ....

McBroom v. Brown, 53 Colo. 412, 127 P. 957, 958 (1912) (citing Phillips v. Smith, 25 Colo. 456, 55 P. 184 (Colo.1898)). If this clear mandate of the Colorado Supreme Court were being followed, this issue would not currently be before us. We understand from the record and from oral argument that existing Colorado law was not followed on advice from the Attorney General of the State. However, we find no basis in law for concluding that the Colorado Supreme Court's decision in McBroom is not binding on the Secretary of State today.

Based on the unambiguous articulation of Colorado law in McBroom, we affirm the trial court's injunction which allows plaintiffs to receive the same name protection accorded those groups that have achieved the status of "political parties." Thus, we find it unnecessary to consider whether the provision as heretofore enforced by the Secretary of State would violate constitutional standards.

II. Voter Registration Forms.

The gravamen of plaintiffs' complaint and the trial court's findings on the issue of voter registration forms is that under today's political realities, access to minimal information about political party affiliation is the key to successful political...