Barthelmes v. Morris, Civ. No. 72-275-B.
| Decision Date | 29 June 1972 |
| Docket Number | Civ. No. 72-275-B. |
| Parties | A. Wesley BARTHELMES, Jr., et al. v. Willard A. MORRIS, individually, and as Administrator of the State Administrative Board of Election Laws, et al. |
| Court | U.S. District Court — District of Maryland |
Edward L. Genn, of Silver Spring, Md., for plaintiffs.
Henry R. Lord, Deputy Atty. Gen., and E. Stephen Derby, Asst. Atty. Gen., Baltimore, Md., for defendants.
This voting rights case asks for the convening of a three-judge court and invites a further invasion of what was once thought of as the "political thicket." For reasons appearing later in this opinion, the invitation is respectfully declined by the single judge to whom the application was made.
Plaintiff Chester is a registered Democratic voter of the Seventh Congressional District. Plaintiffs Adams and Barthelmes are registered Democratic voters of the Eighth Congressional District. Additionally, Barthelmes is a duly filed candidate for delegate from the Eighth Congressional District to the forthcoming Democratic National Convention. Plaintiffs seek for themselves and for all persons similarly situated declaratory and injunctive relief to avoid what they allege will be the debasement of their vote in the Maryland Election to be held May 16, 1972. In that election, Maryland will conduct a presidential preferential primary and select delegates to the Democratic National Convention. Defendants are the State Administrative Board of Election Laws and Willard A. Morris, its Administrator.1
Plaintiffs contend that Article 33, Annotated Code of Maryland, § 12-1(a) (1), apportioning an equal number of convention delegates to each of Maryland's eight congressional districts, deprives them of equal protection of the law in violation of the Fourteenth Amendment to the United States Constitution and deprives them of certain civil rights in violation of 42 U.S.C.A. § 1983. Jurisdiction is invoked under 28 U.S.C. A. § 1343(3) and (4). They seek the convening of a three-judge court pursuant to 28 U.S.C.A. §§ 2281 and 2284 and a declaration that the Maryland law is unconstitutional pursuant to 28 U.S. C.A. § 2201 and Rule 57, F.R.Civ.P. Plaintiffs ask that the defendants be enjoined from conducting the forthcoming Maryland election under the existing law or alternatively from certifying candidates as elected unless said election is conducted pursuant to a formula which will grant equal effective voting power to political party members throughout the state or in accordance with the so-called 50-50 apportionment formula of the Democratic National Committee.
This action was brought on March 17, 1972 and, on March 29, defendants moved to dismiss for failure to state a claim upon which relief could be granted. Defendants also oppose the convening of a three-judge court. In support of the motion, defendants claim that plaintiffs have failed to raise a substantial constitutional question, are barred by laches, and are not entitled to injunctive relief. On March 31, a hearing was held on defendants' motion and objection at which testimony was taken from defendant Morris.
Those portions of the Maryland election laws pertinent to this case and now codified as Article 33, Annotated Code of Maryland, §§ 12-1 and 12-2, were signed into law by the Governor on May 14, 1969, and became effective July 1, 1969. Portions of these laws including sections 12-1(b) and (c) and 12-2(a) were amended in 1971, effective July 1, 1971. On November 16, 1971, the deadline for changes of party affiliation passed, § 3-8(b), and within fifteen days thereafter, December 1, 1971, the local boards of election were required to submit the total registration for each party to the State Administrative Board of Election Laws, § 3-9A(a). On December 6, 1971, the State Board issued an official statement of the total registered voters in the State affiliated with each party. § 3-9A(b). The new congressional district lines necessary to compute the figures shown in plaintiffs' Exhibit B were available in final form by May 6, 1971 when Chapter 353 of the Laws of Maryland of 1971 defining Maryland's congressional districts was signed into law, effective July 1, 1971.
Section 12-1(a) (1) states: "Of the number of delegates allotted to Maryland . . . there shall be elected from each congressional district an equal number of district delegates from the list of candidates certified to the boards by the State Administrative Board of Election Laws." With 53 Democratic delegates allotted to Maryland, § 12-1(a) (1) allocates six delegates to each of the eight Maryland congressional districts with five delegates to be selected at large by the elected delegate body. § 12-1(a) (2). On February 19, 1971, however, the Democratic Party guidelines for the allocation of delegates was adopted by the Democratic National Committee, requiring that apportionment of convention delegates within each state be based on a so-called 50-50 formula, giving equal weight to total population and to the Democratic vote in the previous presidential election. This formula would alter the delegate total to be selected in five congressional districts. The First, Fourth, and Sixth would lose one delegate each. The Seventh would gain two, and the Eighth, one. (Defendants' Exhibit 2).
At hearing, plaintiffs submitted a letter dated March 16, 1972 from Robert Nelson, Staff Director of the Democratic National Committee, stating that Maryland was one of two states which had not complied with this guideline. (Exhibit 1(f)).
The deadline for filing as a candidate for delegate to the National Convention was March 6, 1972. As of the date of the hearing, 550 candidates for delegate to the Democratic National Convention had filed. The congressional district breakdown is as follows (Testimony of Willard A. Morris, Administrator, State Administrative Board of Election Laws, at hearing):
1st - 28
2nd - 95
3rd - 93
4th - 79
5th - 74
6th - 46
7th - 59
8th - 76
Of this total, 121 delegates had formed alliances with various Democratic presidential contenders (Defendants' Exhibit 1):
Chisholm - 7
Humphrey - 42
Lindsay - 17
McGovern - 36
Muskie - 6
Wallace - 13
However, only candidates McGovern and Humphrey in the Fourth and Sixth Congressional Districts had fielded full delegate slates. (Plaintiffs' Exhibit 3(h)).
The deadline for presidential candidates to file written permission for a delegate to have the candidate's name placed adjacent to his name on the ballot passed on March 23, 1972. § 12-1(a) (1). April 3 was the deadline for the withdrawal of all candidates. § 9-1(a). As of that date, the candidates and their alliances were locked in on the ballot. Ballot arrangements cannot be completed until all withdrawal and filing deadlines have passed and all candidates have been certified by the local boards as meeting the voter registration requirements. § 4A-1(a). All ballots must be final and posted by April 20, 1972. During the five-day period after posting, challenges can be made to the arrangement and form of the ballot only. § 16-4(b), testimony of Willard A. Morris.
On February 28, 1972, Senate Emergency Bill No. 350 (Plaintiffs' Exhibit C), was defeated. S.B. No. 350 would have replaced § 12-1(a) with the following subsection:
"(1) In the event that the national governing body of a party sets standards governing the apportionment of delegates to be elected from Congressional Districts to that party's convention, with which all state delegations must comply in order to be seated in the convention, then the Maryland delegates to that convention shall be apportioned in accordance with those rules and with the provisions of this paragraph. . . ."
March 6, 1972 was the last day for the introduction of bills in the current session of the Maryland General Assembly without suspension of Rules. Other than S.B. No. 350 which failed of passage, no bill amending § 12-1(a) has been introduced. The current session of the Assembly will end on April 10, 1972 and unless called into special session the Assembly will not reconvene until January 1973. This action was filed on March 17, 1972.
The standing of plaintiffs to bring this suit as a class action pursuant to Rule 23, F.R.Civ.P. need not now be determined.2 Furthermore, plaintiffs conceded at the hearing that the requested declaratory and injunctive relief, if granted, would effectively provide for the class the same relief.
Plaintiffs clearly have standing to sue, a fact conceded by defendants. The test, as announced by the Court in Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962) is:
"Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions?"
The Baker plaintiffs, qualified voters residing in various Tennessee counties who challenged that state's legislative apportionment, were held to have standing to maintain the suit. At 206, 82 S. Ct. 691. Subsequent cases have construed Baker as establishing the standing of voters to seek the protection of the United States Constitution against the dilution or debasement of their right to vote. Gray v. Sanders, 372 U.S. 368, 375, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963); Scott v. Hill, 449 F.2d 634 (6th Cir. 1971) and cases cited therein.
That action by the state is involved is clear where, as here, Maryland authorizes the conduct of a primary election through a legislative act and determines the formula for delegate selection. "State regulation of this preliminary phase of the election...
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