Barnhart v. Mandel

• Citation: 311 F. Supp. 814
• Decision Date: 25 February 1970
• Docket Number: Civ. 70-19.
• Parties: Melvin A. BARNHART et al. v. Honorable Marvin MANDEL, Governor of the State of Maryland; Willard A. Morris; and Honorable Francis B. Burch, Attorney General for the State of Maryland.
• Court: U.S. District Court — District of Maryland

311 F. Supp. 814

Melvin A. BARNHART et al. v. Honorable Marvin MANDEL, Governor of the State of Maryland; Willard A. Morris; and Honorable Francis B. Burch, Attorney General for the State of Maryland.

Civ. 70-19.

United States District Court, D. Maryland.

February 17, 1970.

Final Decree February 25, 1970.

Lawrence B. Scally, Baltimore, Md., and Jerome W. Taylor, Towson, Md., for plaintiffs.

Francis B. Burch, Atty. Gen. of Maryland, Robert F. Sweeney, Deputy Atty. Gen. of Maryland, and Henry R. Lord, Asst. Atty. Gen. of Maryland, for defendants.

Before WINTER, Circuit Judge, and NORTHROP and KAUFMAN, District Judges.

FRANK A. KAUFMAN, District Judge:

On November 5, 1968, at the last general election held in Maryland, 1,264,629 Maryland residents cast their ballots for President and Vice-President of the United States, for United States Senator, for eight members of the United States House of Representatives, and for a number of state appellate and trial judges; and, in addition, recorded their preferences in connection with a number of questions pertaining to constitutional amendments and matters subject to referenda. 1,235,039 persons — that is, all but 25,590 who went to the polls that day — cast ballots for the presidential and vice-presidential candidates; 1,133,727 persons voted in the race for the United States Senator; 1,119,648 voted for candidates for the federal Congress; 2,034,545 votes were cast in connection with the election of state judges, and 2,529,545 with regard to proposed constitutional amendments and matters subject to referenda. In all, 7,952,504 votes were cast for candidates and issues. 2,368,766 votes were cast in the two statewide elections, i. e., for President and Vice-President, and for the United States Senate.

George C. Wallace, former Governor of Alabama, appeared on the ballot by petition, seeking the office of President of the United States. Mr. Wallace, and his running-mate for the Vice-Presidency, S. Marvin Griffin, who were designated on the ballot as candidates of the American Party, received 178,734 votes representing approximately 14.5% of the total votes cast for the offices of President and Vice-President; about 7.5% of the total votes cast in the two statewide elections for the Presidency and Vice-Presidency and for the United States Senate; and slightly in excess of 2% of the total votes cast for all candidates and for all issues.¹

Plaintiffs, who challenge the constitutionality of certain portions of the election laws of Maryland, Md.Ann.Code art. 33 (1957 Ed., as amended, Supp. 1969), are "The American Party of the State of Maryland" (American Party) and fourteen individuals. The latter are alleged to be citizens of the United States, residents of the State of Maryland and persons presently eligible to vote and seek elective office in Maryland. One of them, Verona K. Redmond, is alleged to have been an elector in the November, 1968 election, and is further alleged to have called a membership meeting of the American Party on November 15, 1969. Another of the individual plaintiffs, Henry T. Fields, Sr., is alleged to have tendered his application as a candidate for the office of Member of Congress from the sixth congressional district of Maryland to one of the defendants, William A. Morris, the State Administrator of Election Laws.² Mr. Morris is alleged to have refused to accept that application on the sole ground that Mr. Fields is affiliated with the American Party. Named as defendants are the Honorable Marvin Mandel, Governor of Maryland, the Honorable Francis B. Burch, Attorney General of Maryland, and Mr. Morris.

Defendants have filed a motion to dismiss the complaint under Rule 12(b) (6) of the Federal Rules of Civil Procedure for "failure to state a claim upon which relief can be granted." In the context of that motion, all facts well pleaded by plaintiffs must be assumed to be true.

The complaint also states that notices of the American Party's membership meeting on November 15, 1969 were sent to all persons registered in any of Maryland's political subdivisions as members of the American Party, and that at the said meeting, a constitution and bylaws were adopted and officers designated by the meeting were authorized to participate in this case on behalf of the American Party.

In instituting this suit, plaintiffs requested the convening of a three judge court pursuant to 28 U.S.C. § 2281, basing that request on alleged violations of requirements of the federal Constitution by the provisions of present Article 33 of the Maryland Code.

Defendants opposed the demand for a three judge court on the ground that plaintiffs' challenge lacks substantiality and is frivolous. Under 28 U.S.C. §§ 2281 and 2284(1), a federal district judge is required to convene a three judge district court only if there is a substantial, nonfrivolous attack upon the constitutionality of a state statute. Swift & Co. v. Don J. Wickham, 382 U.S. 111, 115, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965); Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962); Ex Parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 78 L.Ed. 152 (1933); Green v. Board of Elections, 380 F.2d 445, 448 et seq. (2d Cir. 1967); German v. South Carolina State Ports Authority, 295 F.2d 491, 494 (4th Cir. 1965); Jacobs v. Tawes, 250 F.2d 611, 614 (4th Cir. 1957).³ In this case, the district judge to whom the request for a three judge court was presented determined that the issues posed could not be classified as insubstantial or frivolous. All members of this three judge court agree that the questions presented herein pose important federal constitutional problems.

I.

To understand the issues which this litigation raises, it is necessary first to analyze the pertinent portions of the Maryland election laws:

The current Maryland election law, enacted by the Maryland legislature in 1969, to become effective⁴ July 1, 1969, provides for a State Administrative Board of Election Laws, consisting of five members, and for a State Administrator of Election Laws to perform such duties as may be assigned to him by the Board. Md.Ann.Code art 33, § 1A-1 (1957 Ed., as amended, Supp. 1969).⁵ Section 1A-1(f) empowers the Board to adopt rules and regulations to assist the boards of supervisors of elections in the various Maryland jurisdictions to comply with the requirements of Article 33 with respect to registration, voting and elections and in otherwise fulfilling their duties under the said article.

Section 4-1 provides in pertinent part, as follows:

(a) Nominations for offices which are filled by elections under the provisions of this article may be made by primary election, primary meeting, or petition.

(b) Nominees of political parties which polled 10% or more of the entire vote cast in the State in the last preceding general election shall be nominated by primary election as hereinafter provided.

(c) Nominees of political parties which polled more than 1% but less than 10% may be nominated by primary meeting as hereinafter provided.

(d) Nominees other than of political parties as provided for in (b) or (c) above may be nominated by petition as hereinafter provided. Emhases supplied.

* * * * * *

Section 4A-1 sets forth requirements for filing certificates of candidacy. Section 5-1 relates to parties using primary elections and reads as follows:

Any political party which at the general election next preceding any primary election to be held hereunder, shall have polled ten per centum or more of the entire vote cast in the State shall nominate (1) all its candidates for public office; and (2) all members of the State and local central committees in said political party by means of primary elections conducted under the provisions of the subtitle; and shall elect the appropriate number of delegates to a national convention as provided in this article. The several boards shall not print on the official ballot to be voted at any general or special election to be hereafter held the name or names of any such candidate or candidates for election in Baltimore City or any of the counties of the State of any of said parties who shall not be so nominated and whose nomination shall not be certified to them or to the Secretary of State as having been so nominated. Emphasis supplied

Section 5-1 does not refer to section 4-1(b), but clearly implements the latter.

Section 6-1 defines a "primary meeting" and states how it is to be called and conducted. It reads as follows:

(a) Defined. Italics in original — A primary meeting within the meaning of this article is an organized assemblage of delegates or voters, registered under this article as members of a particular party whose highest candidate at any election held within two years next preceding the holding of such meeting polled more than one per centum and less than ten per centum of the entire vote cast in the State, county or other division or district for which the nomination is made. Candidates of such a party for public office may be nominated by a primary meeting as thus defined. Emphasis supplied.

(b) How called and conducted. Italics in original — The primary meeting shall be called by the party chairman, if one has been selected, and if not, by the party's candidate for the highest State-wide office in the preceding general election, upon thirty days' notice by publication in newspapers of circulation deemed adequate to reach all of the party's members, the notice to be reprinted twenty, ten and five days prior to the primary meeting. The notice will designate the time, place and purpose of the meeting and the agenda to be followed. The meeting will be conducted according to Roberts Revised Rules of Order, unless the party shall have previously adopted and filed with the Secretary of State a constitution and bylaws which comply substantially with § 11-1 of this article.

Section 6-1 does not refer to section 4-1(c), but, as in the...