Dillon v. King
| Decision Date | 06 December 1974 |
| Docket Number | No. 9895,9895 |
| Citation | 1974 NMSC 96,529 P.2d 745,87 N.M. 79 |
| Parties | Maurice Malcolm DILLON, Plaintiff-Appellant, v. Bruce KING, Governor, et al., Defendants-Appellees. |
| Court | New Mexico Supreme Court |
Plaintiff-appellant (Dillon), in a declaratory judgment action, challenged the constitutionality of §§ 3--8--17 to 3--8--26.1, N.M.S.A.1953 (Supp.1973) (), upon a variety of grounds. From an adverse judgment, he appeals. We affirm.
Section 3--8--24.1 requires one who desires to become a candidate in a primary election to file nominating petitions with his declaration of candidacy. By the petition form prescribed, the signer certifies that he is a registered voter and a member of the political party whose nomination the candidate seeks. A declaration is also elicited from the signer that he has not and will not sign nominating petitions for other candidates seeking the same office. Section 3--8--24.4 specifies the number of signatures required. The 'total vote for the party's candidates for governor at the last preceding primary election at which the party's candidate for governor was nominated' is the key figure. Candidates for the United States Senate and other statewide offices are required to file petitions bearing signatures in a number equal to at least three percent of such 'total vote.' Moreover, the signatures must include a number 'equal to at least one per cent (1%) of the votes of the party of the candidate in each of at least ten (10) counties * * *.'
For United States Representative, the three percent figure applies, but only to the 'total vote' in the congressional district. The one percent figure also applies but only as to five counties in the district.
Section 3--8--24.4 provides for the number of signatures required for various other offices whose bailiwick is less than the entire state, but Mr. Dillon's petition only expresses interest in the Congress or a statewide state office. Suffice it to say that as to such offices, the three percent figure still applies but only as to the area of the state pertaining to that particular office.
At the time of the 1972 primaries, there were 265,491 registered Democrats of whom 128,159 voted in the 1970 gubernatorial primary and 118,924 registered Republicans of whom 56,278 voted in the same primary. A candidate in the Democratic party primary (Mr. Dillon testified he had been a Democrat for about two years) in a state-wide race would have needed 3,846 signatures. For Representative in Congress from Mr. Dillon's congressional district, 2,049 signatures were required. The parallel figures for candidates in the Republican primary were 1,689 and 1,091.
The statutes in question have had an interesting legislative and judicial history in which Mr. Dillon has played an active role. The predecessor statute required the filing of a declaration of candidacy and the payment of a rather modest filing fee for the offices with which we are concerned--six percent of the first year's salary. Ch. 240, § 176 (1969), Laws of N.M. 957, 1057. There was no alternative available to the filing fee method as there is today. See § 3--8--24.7, N.M.S.A.1953 (Interim Supp.1974).
Mr. Dillon and two others, expressing a desire to become candidates in the Democratic party primary for the United States Senate, attacked the prior statute in federal court. They claimed to be too poor to pay the filing fee and that they were thereby deprived of the equal protection of the law under the fourteenth amendment to the Constitution. Trial before a three-judge panel culminated in a final judgment restraining the Secretary of State from enforcing the statute, as it then existed, against Mr. Dillon and his co-plaintiffs should they file a declaration of candidacy for the office of United States Senator in the 1972 primary election. Dillon v. Fiorina, 340 F.Supp. 729 (D.N.M.1972). We held in State ex rel. Apodaca v. Fiorina, 83 N.M. 663, 495 P.2d 1379 (1972) that the predecessor statute was constitutional, but in deference to the decision in Dillon v. Fiorina, Mr. Dillon and his co-plaintiffs were exempted from payment of filing fees. The federal panel, sua sponte, then exempted all candidates in the Senate race from payment of filing fees. State ex rel. Apodaca v. Fiorina was appealed to the United States Supreme Court. The Legislature then repealed the statute requiring payment of filing fees and enacted the statutes whose constitutionality we here consider. The United States Supreme Court recently handed down its opinion in Lubin v. Panish, 415 U.S. 709, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974). Based upon Lubin, State ex rel. Apodaca v. Fiorina was remanded for further consideration. Since the statute requiring payment of filing fees had been repealed and replaced by the statutes presently under consideration, we vacated the judgment in State ex rel. Apodaca v. Fiorina and dismissed the case. 86 N.M. 494, 525 P.2d 854 (1974). The saga continues with this appeal.
Mr. Dillon now complains that the present statute is, as a practical matter, more onerous than its predecessor. Perhaps it is. But the practicalities of the situation have been divorced from the law on the subject by the mentioned opinions. The filing fee requirement, in the absence of reasonable alternatives, was held to be unconstitutional in Lubin, although as a practical matter, we think any serious candidate with a modicum of support could raise a reasonable fee. True, the present arrangement may be more onerous, but the salient feature is that the Supreme Court has held the petition method to be constitutional. Lubin v. Panish, supra; Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971).
Mr. Dillon is thus hoist with his own petard. He apparently claims that any procedure by which a candidate is required to do anything other than simply declare his candidacy is an impermissible deprivation of equal protection under the fourteenth amendment. This position is not only patently absurd, but is unsupported by the case law.
Pursuant to article I, sections 2 and 4 of the United States Constitution, each state has a wide discretion in the formulation of an elective system for the choice by the people of representatives in Congress. United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941). Accordingly, this state has the authority to regulate the manner of conducting elections by enacting 'such laws as will secure the secrecy of the ballot, the purity of elections, and guard against the abuse of elective franchise.' N.M.Const. art. 7, § 1.
In People's Constitutional Party v. Evans, 83 N.M. 303, 305, 307, 491 P.2d 520, 522, 524 (1971), we recognized that:
'Free and open elections do not require a total lack of restraint on the number of political parties and nominees entitled to placement on the ballot.
'The State has a legitimate interest in trying to determine some degree of good faith on the part of electors who sign nominating petitions, and in assuring at least a modicum of support for a political party and its nominees whose names are placed on the general election ballot.'
The state also has a legitimate interest in regulating the size of the ballot so as to minimize voter confusion and to prevent the overwhelming of voting machines. See Thomas v. Mims, 317 F.Supp. 179, 182 (S.D.Ala.1970); Wetherington v. Adams, 309 F.Supp. 318, 321 (N.D.Fla.1970).
The United States Supreme Court has acknowledged the state's interest in keeping its ballots within manageable, understandable limits. Lubin v. Panish, supra; Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972). As Chief Justice Burger said for a unanimous court in Lubin:
The 'laundry list' ballot, as it has been aptly characterized by the Chief Justice, is a real and present danger in New Mexico. Our electoral history vividly demonstrates that unrestricted primaries, such as those for which Mr. Dillon contends, foster a rank and verdant growth of candidates. For example, in the 1972 primary race for the Senate nomination of the Democratic party in which (under the federal decree) no filing fee could be charged, twenty-eight candidates filed of whom twenty-five completed the course. The votes polled ranged from 45,648 for the successful candidate, Mr. Jack Daniels, to the least successful, Mr. Thomas S. El Diferente Macaione, who trailed with 252 votes. By way of comparison, in the parallel race for the nomination of the Democratic party for the House of Representatives, in which a filing fee was still required by our decision in State ex rel. Apodaca v. Fiorina, there were only five candidates and the vote ranged from 27,109 for the winner, Mr. Eugene Gallegos, to a respectable 3,570 for Ms. Sparkle Plenty, who brought up the rear.
In the recent election for Mayor of Albuquerque, a non-partisan with a runoff, but with unrestricted filing, thirty-three candidates filed of whom thirty came out of the starting gate.
Whether this proliferation of candidates in unrestricted filing situations prevails elsewhere to the same degree we are not prepared to say, but it is a demonstrable fact in New Mexico.
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