Carter v. Dies
| Decision Date | 21 December 1970 |
| Docket Number | 3-3739-C.,Civ. A. No. 3-3635-C,3-3733-C |
| Citation | 321 F. Supp. 1358 |
| Parties | Van Phillip CARTER v. Martin DIES, Jr. and Dr. Elmer C. Baum. Theodore H. WISCHKAEMPER on Behalf of Himself and all others Similarly Situated v. Robert L. WRIGHT, Chairman of the Tarrant County Democratic Executive Committee, et al., Reubin Jenkins, Intervenor. William PATE, on Behalf of Himself and all others Similarly Situated, v. George A. McALMON, Jr., as Chairman of the County Democratic Executive Committee of El Paso County, Texas and individually and the County Democratic Executive Committee of El Paso County, Texas and the Primary Committee, Carlos Guzman, Luz A. Lozano, Andrea L. Sifuentes and Manuel Sapien, on Behalf of Themselves and all others Similarly Situated, and as members of U.N.I.O.N., Incorporated, Intervenors. |
| Court | U.S. District Court — Northern District of Texas |
H. Averil Sweitzer, Dallas, Tex., for Van Phillip Carter.
Charles F. Herring, Small, Herring, Craig, Werkenthin & Shannon, Austin, Tex., for Dr. Elmer Baum.
William J. Craig, Asst. Atty. Gen., Austin, Tex., Crawford C. Martin, Atty. Gen., for the United States.
A. L. Crouch, Fort Worth, Tex., for Theodore H. Wischkaemper.
Thomas H. Law, Fort Worth, Tex., for Robert L. Wright, Chairman of Tarrant County Demo. Exec. Committee.
Estil Vance, Jr., Fort Worth, Tex., for Dr. J. D. Tomme, Jr.
A. L. Crouch, Fort Worth, Tex., for Reubin Jenkins, Intervenor.
John L. Fashing, Calamia & Fashing, El Paso, Tex., for William Pate.
Mark F. Howell, El Paso, Tex., for George A. McAlmon, Jr., and others.
Before THORNBERRY, Circuit Judge, and HUGHES and TAYLOR, District Judges.
In the above cases, the plaintiffs seek an injunction to restrain the enforcement of Tex.Election Code Ann. Arts. 13.07a, 13.08, 13.08a, 13.15, and 13.16, V.A.T.S. (1967)1 and to have them declared unconstitutional.
These articles require candidates to pay filing fees as a condition to having their names placed on a ballot in a primary election.
The parties have stipulated that Plaintiff William Pate meets all qualifications to be a candidate in the Democratic Primary Elections for the office of County Commissioner of Precinct Four for El Paso County, Texas, except that he cannot pay the $50.00 deposit nor the $1424.00 assessment. Likewise, Plaintiff Theodore Wischkaemper meets all of the qualifications for County Judge of Tarrant County, Texas, except that he has not paid the $6,300.00 assessment fee.
Plaintiff Carter's application to be placed on the ballot for the office of Commissioner of the General Land Office was denied by the State Democratic Executive Committee because it was not notarized,2 it was not accompanied by a filing fee,3 and it was not accompanied by a notarized loyalty affidavit.4
In addition to the plaintiffs, Reubin Jenkins has been allowed to intervene as a voter who wished to vote for plaintiff Wischkaemper and Carlos Guzman, et al. have asked to be allowed to intervene as voters who desired to vote for Plaintiff Pate. The latter will be allowed to intervene. Fed.R.Civ.P. 24(a) (2).
Plaintiffs claim that the filing fees deprive them of their right to run for office in violation of the due process and equal protection clauses of the Fourteenth Amendment because they cannot afford to pay the required fees. Intervenors claim that the filing fees deprive them of their right to vote for a candidate of their own choice in violation of the same sections of the Constitution. Specifically, it is alleged that the assessments are (1) exorbitant, arbitrary, capricious, irrelevant, unreasonable, outrageously high, (2) without any reasonable relation to any legitimate legislative purpose and not germane to one's ability to participate intelligently in the electoral process, and (3) discriminatory, in that some offices are assessed higher amounts than others.
A three-judge court was convened on April 3, 1970 in accordance with 28 U.S.C. § 2281 to hear the Plaintiffs' request for a preliminary injunction. The court allowed the names of Plaintiffs Pate and Wischkaemper to be placed upon the ballot without the payment of any fee. No fee would have to ever be paid if, on final determination of the merits, their claims are accepted by the court; but, should the court reject their claims, they would then be required to pay the challenged fees. Relief was denied as to Plaintiff Carter because he has not complied with filing requirements unrelated to filing fees and assessments. Neither Pate nor Wischkaemper won in their respective primary.
All plaintiffs have stated that they intend to become candidates for state office at the next election period. Even though Plaintiff Carter has failed to meet other requirements in addition to not paying the filing fee, the court need not pass upon his claim because the relief he seeks is the same as that sought by Plaintiffs Pate and Wischkaemper.
It is undisputed that primary elections of political parties are state action and subject to the Fourteenth Amendment. Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944).
Since the rights of the intervenors as voters will be determinative of the constitutionality of the laws here attacked, we deem it unnecessary to discuss the rights of the candidates.
The Reynolds court went further in describing the right to vote, saying it included the right to cast one's vote effectively.5 The effectiveness of the vote there was quantitative in that it was an apportionment case. In Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968), the right to cast one's vote effectively was again discussed. The effectiveness of the vote in that case was qualitative in nature rather than quantitative in that the voters were desirous of voting for a specific candidate who espoused their political beliefs.
The right to choose one's candidate is not only a fundamental political right protected by the Fourteenth Amendment, it encompasses the First Amendment right "to associate for the advancement of political beliefs." Williams v. Rhodes, supra.
Whenever a First Amendment right is encumbered by the state, the burden is on the state to show that such infringement is necessary to support a compelling state interest.6 The primary purpose of the filing fee assessments under the Texas statutory scheme is to raise revenue. Campbell v. Davenport, 362 F.2d 624 (5th Cir. 1966). This "tax" is used by the party to cover the cost of the primary. All monies collected in excess of the cost of the primary are refunded to the candidate.
In order to qualify as a compelling state interest, the law must be shown to be "necessary, and not merely rationally related, to the accomplishment of a permissible state policy." McLaughlin v. Florida, 379 U.S. 184, 196, 85 S.Ct. 283, 13 L.Ed.2d 222, 290-291 (1964). The collection of revenue is, of course, a permissible and legitimate interest but under these circumstances not a compelling state interest. These assessments are not necessary to insure the collection of revenue. Approximately eighteen states do not require candidates to pay any filing fees to support the primary.7 The State of Texas has been able to find other adequate means of collecting revenue which do not restrict the right to vote.8 United States v. State of Texas, 252 F. Supp. 234, 252 (W.D.Tex.1966).
The Court does not mean to imply that there is no compelling interest, pursuant to which the State may require a primary filing fee. We have limited our decision here to say that a filing fee violates the First Amendment and the due process and equal protection clauses of the Fourteenth Amendment when it is used as a revenue collecting device or when made an absolute qualification in order for a candidate to get his name on the ballot. Indeed, there may be other compelling interests which would justify some type of reasonable fee. The Williams court recognized that the State could have a compelling interest in regulating the ballot.9
In determining whether the State's interest in exacting a filing fee is sufficiently compelling, "we must consider the facts and circumstances behind the law, the interests which the State claims to be protecting, and the interests of those who are disadvantaged by the classification." Williams v. Rhodes, supra, 393 U.S. p. 30, 89 S.Ct. p....
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...405; NAACP v. Alabama, 1958, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488; see also Carter v. Dies, N.D.Tex.1970 (three-judge court), 321 F.Supp. 1358. While the Fourteenth Amendment does not prohibit all unequal treatment of individuals or groups and does permit rough accommodations, it doe......
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