Dart v. Brown, 82-3146

• Decision Date: 24 October 1983
• Docket Number: No. 82-3146,82-3146
• Citation: 717 F.2d 1491
• Parties: Henry T. DART and the Libertarian Party of Louisiana, Plaintiffs-Appellants, v. James H. BROWN, Secretary of State for the State of Louisiana, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1491

717 F.2d 1491

Henry T. DART and the Libertarian Party of Louisiana Plaintiffs-Appellants, v. James H. BROWN, Secretary of State for the State of Louisiana, et al., Defendants-Appellees.

No. 82-3146.

United States Court of Appeals Fifth Circuit.

Oct. 24, 1983.

Henry T. Dart, pro se.

Louis M. Jones, Joseph Giarrusso, Jr., Maureen J. Feran, Asst. Attys. Gen., Paul A. Eckert, Staff Atty., New Orleans, La., for State of La.

Ronald P. Nabonne, New Orleans, La., for Lombard.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before TUTTLE^*, POLITZ and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

Appellants, Henry T. Dart and the Libertarian Party of Louisiana, brought this suit seeking both injunctive relief and a declaration that certain sections of the Louisiana Election Code were unconstitutional. Finding that the Code sections in question, restricting the notation on the ballot of a candidate's affiliation with an "unrecognized" political party, were constitutional, the district court, following a bench trial, granted judgment for the defendants. We affirm.

On December 18, 1981, Henry T. Dart, a registered member of the Libertarian Party of Louisiana, qualified to run for election to the New Orleans City Council, District B. The preprinted notice of candidacy form, prepared by the office of James Brown, the Secretary of State, contains three boxes concerning party affiliation, one of which the candidate must check. After the phrase, "I am," the candidate must check the box labeled "a member of the Democratic Party," the box labeled "a member of the Republican Party," or the last box, labeled "not affiliated with a recognized political party." Dart checked the box indicating that he was not affiliated with either recognized party (Democratic and Republican), and then typed in "Libertarian Party" next to that box. On December 21, 1981, Edwin Lombard, Clerk of the Criminal District Court for the Parish of Orleans, certified to Brown the candidates qualified for election. Dart was among them.

The certification form which Lombard submitted to Brown listed the political affiliation of each of the five candidates for the office in question, except Dart, as Democrat. Next to Dart's name was "NP," signifying that Dart was affiliated with no "recognized" party.

Dart wrote to Brown and Lombard on January 4, 1982, and demanded that the designation "Libertarian Party" be placed after his name on the City Council election ballot. Melvin Bellar, Legal Counsel for the Office of the Secretary of State, responded on January 7, 1982, that because the Libertarian Party was not a "recognized political party" as defined in LSA-R.S. 18:441, Brown was not authorized, under LSA-R.S. 18:551 D and E, to print Dart's party designation on the ballot and did not intend to do so.

On January 11, 1982, Dart and the Libertarian Party filed this lawsuit against Brown and Lombard under 42 U.S.C. Sec. 1983. ¹ The appellants alleged that LSA-R.S. 18:441, 18:551 D, and 18:551 E violated the First and Fourteenth Amendments to the United States Constitution, and article 1, section 3, of the Louisiana Constitution. ² Dart and the Libertarian Party sought a declaration that the statutes were unconstitutional, as well as an injunction requiring the appellees to either designate Dart's party affiliation ("Libertarian") on the ballot or remove all candidates' party affiliations from the ballot. By consent of the parties, trial on the merits was consolidated with the hearing on preliminary injunction, and on January 29, 1982, the district court heard the case. On February 3, 1982, the court entered judgment denying the request for the preliminary injunction and dismissing the suit. In its opinion filed the same day the court held that the Louisiana statutes did not violate the appellants' constitutional rights. ³

THE LOUISIANA STATUTORY SCHEME AS APPLIED TO APPELLANTS

It is undisputed that Dart qualified to run in the February 6, 1982 New Orleans City Council "primary" election, and that his name was on the ballot in that election.

That ballot, however, did not designate Dart's political affiliation, although the party affiliation of Dart's four opponents was indicated by the word "Democrat," placed in small type beneath each of their names. The equivalent space under Dart's name on the ballot was left blank. The ballot was prepared in conformity with LSA-R.S. 18:551 D, which provides:

"D. Political party designation. The political party designation of a candidate who is registered as being affiliated with a recognized political party shall be printed on the primary or general election ballot on the same line and immediately after or below the candidate's name. If a candidate is not affiliated with a political party, the space after his name shall be left blank." (Emphasis added.)

Dart's political affiliation with the Libertarian Party was not placed on the ballot because the Libertarian Party was not then, and is not now, a "recognized" party in Louisiana.

Louisiana schedules elections for different classes or groups of elective offices at different times, but for nearly all such offices, other than presidential elector, there is a "primary" election and, if necessary, also a "general" election. Secs. 401, 402, 1251, 1271, 1272. Louisiana has an "open" primary system. The "primary" election is not a device for party nomination. Rather, there is only a single primary election for each office or group of offices, all qualified voters are entitled to vote in it regardless of their party affiliations, and all qualified candidates are eligible to appear on the ballot, regardless of party endorsement or affiliation. Sec. 401. Apart from general requirements such as age or residence, a candidate qualifies to appear on the primary ballot merely by timely filing a "notice of his candidacy" accompanied by either a filing fee or a nominating petition. ⁴ Filing fees range from five hundred dollars for candidates for governor, three and four hundred dollars for other state offices, and lesser amounts for local and municipal offices. Sec. 464. ⁵ Nominating petitions are to be signed by registered voters in a certain minimum number, ranging from five thousand for all statewide candidates to lesser numbers for other offices. Sec. 465 C. ⁶ The registered party affiliation, if any, of the voters signing the petition is irrelevant. ⁷

A candidate receiving a majority of the votes cast for the office at the primary election is elected. Sec. 511 A. ⁸ If no one candidate receives a majority, then the two candidates for the office who received the greatest number of votes at the primary election appear on the subsequent general election ballot, and the candidate who receives the greatest number of votes in the general election is elected. A general election is held for an office only if no one is elected to it as a result of the primary election process, and the only candidates appearing on the general election ballot are those who "survived" the primary. Secs. 481, 482, 551 C(2). The "general" election is thus simply a "runoff" election between those receiving the greatest number of votes in a primary election in which no candidate received a majority. On both the primary and general election ballots all candidates for a given office are listed alphabetically by surname in a vertical column headed by the title of the office. Sec. 551 C. ⁹ Except for the referenced designation of the registered political party affiliation of candidates registered as affiliated with a recognized party, "no information, designation or title shall be printed on the ballot." Sec. 551 E. ¹⁰

Section 441 of the Louisiana Election Code prescribes the requisites for recognition of a political party:

"A political party shall be recognized in this state if one of its candidates for presidential elector received at least five percent of the votes cast in this state for presidential electors in the last presidential election, or if at least five percent of the registered voters in the state are registered as being affiliated with the political party...." ¹¹

Under Louisiana law there are thus two routes by which a political party may become recognized. Recognition may be achieved under either. One route is for five percent of the State's registered voters to be registered as being affiliated with that party. When a person registers to vote, his or her then declared "political party affiliation," if any, is entered in the voter registration records. Secs. 104 A(11), 107 A. Registration to vote occurs at the local parish level and may be accomplished at any time, ¹² though it must normally be done in person. Secs. 103, 131, 132, 133. "An elector may change his party affiliation by making application therefor in writing to the registrar." Sec. 107 B. It appears this may be done at any time. Voters "may vote on candidates for public office in primary and general elections without regard to the voter's party affiliation or lack of it, and all candidates for public office who qualify for a primary or general election may be voted on without regard to the candidate's party affiliation or lack of it." Sec. 401 B. ¹³ Just when a party must have five percent of the registered voters registered as affiliated with it, in order to be a "recognized" party for purposes of a given election, is not explicitly stated in the statutes. Presumably this status could be achieved as late as the close of the period for candidates to qualify for the election in question. See note 6, supra. ¹⁴

The other route provided by Louisiana law for political party recognition is that if one of the party's candidates for presidential elector received at least five percent of the votes cast in the State for presidential electors at the last presidential election, the party is "recognized." The candidates for presidential elector selected by each recognized political pa...