Erum v. Cayetano

• Decision Date: 02 August 1989
• Docket Number: No. 87-15156,87-15156
• Citation: 881 F.2d 689
• Parties: Theodorico ERUM, Jr., Plaintiff-Appellant, v. Benjamin J. CAYETANO * , in his official capacity as Lieutenant Governor and Chief Election Officer of the State of Hawaii, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 689

881 F.2d 689

Theodorico ERUM, Jr., Plaintiff-Appellant, v. Benjamin J. CAYETANO ^*, in his official capacity as Lieutenant Governor and Chief Election Officer of the State of Hawaii, Defendant-Appellee.

No. 87-15156.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 17, 1988.

Decided Aug. 2, 1989.

Theodorico Erum, Kapaa, Hawaii, pro se.

Warren Price, III, Atty. Gen., State of Hawaii; Lawrence L. Hines, Steven S. Michaels, Deputy Attys. Gen., State of Hawaii, Honolulu, Hawaii, for defendant-appellee.

Appeal from the United States District Court for the District of Hawaii.

Before O'SCANNLAIN and TROTT, Circuit Judges, and KAY, ^** District Judge.

O'SCANNLAIN, Circuit Judge:

May the State of Hawaii regulate its elections by limiting access of nonpartisan candidates to the general election ballot and by imposing different requirements as between nonpartisan and partisan candidates? The district court held that as a matter of constitutional law, it could. We agree.

I

Theodorico Erum was a nonpartisan candidate for county office in 1984 and received ten votes out of 18,232 cast in the primary election, ¹ or five one-hundredths of one percent. Because the number of votes Erum received represented less than ten percent of all votes cast and 205 votes less than the 215 votes the partisan candidate who qualified for the general election ballot with the least number of votes received, Erum was denied a place on the general election ballot.

Hawaii election law limits candidate access to the general election ballot for local and statewide elective office. Erum challenges in particular the Hawaii statute that prescribes access requirements for nonpartisan primary candidates, Hawaii Revised Statute Sec. 12-41(b) (1985). To become a candidate on the general election ballot, a nonpartisan candidate must receive in the primary election either ten percent or more of the total votes cast for the office sought, or a total equal to or greater than the votes received by the least favored successful partisan candidate. ² Id. ³ ; see also Haw.Rev.Stat. Sec. 11-112 (1985). Partisan candidates on the other hand make their way to the general ballot simply by receiving the greatest number of votes in the primary within their party and are not subject to a corresponding minimum vote requirement. Haw.Rev.Stat. Sec. 12-41(a) (1985) ⁴; see also Haw.Rev.Stat. Sec. 11-112 (1985).

The state prepares a separate primary ballot for each qualifying political party and also one for all nonpartisan candidates. Haw.Rev.Stat. Secs. 12-21, 12-22 (1985). No person eligible to vote in the primary is required to state a party preference or nonpartisanship as a precondition to voting. Haw.Rev.Stat. Sec. 12-31 (1985). Each voter is issued a primary ballot for each party as well as the primary ballot for nonpartisan candidates, but a voter is only entitled to vote on one such ballot. A voter may cast votes only for candidates of the same party or only for nonpartisan candidates. Id. "Cross-over" voting for different offices is not available.

On the day before the 1984 primary election, Erum filed a complaint in pro per in federal district court for the district of Hawaii, seeking to enjoin the Hawaii Lieutenant Governor from enforcing section 12-41. Erum alleges that the ten-percent vote requirement for nonpartisan candidates violates the first and fourteenth amendments in that it burdens rights to associate for political purposes and to vote effectively, and violates the equal protection clause in that it impermissibly discriminates both between partisan and nonpartisan candidates and among nonpartisan candidates.

The district court held that the statute did not violate Erum's constitutional rights and consequently entered an order granting the Lieutenant Governor's motion for summary judgment, from which Erum timely appeals.

II

The Lieutenant Governor contends that Erum lacks standing to challenge the ten-percent requirement of section 12-41 because it did not come into play to exclude him in his 1984 bid to gain access to the general election ballot. ⁵ But Erum brought this action in his capacity as a registered voter of the State of Hawaii as well as in his capacity as an erstwhile and potentially future candidate. Candidate eligibility requirements implicate basic constitutional rights of voters as well as those of candidates. Anderson v. Celebrezze, 460 U.S. 780, 786-87, 103 S.Ct. 1564, 1568-69, 75 L.Ed.2d 547 (1983); see also Lubin v. Panish, 415 U.S. 709, 716, 94 S.Ct. 1315, 1320, 39 L.Ed.2d 702 (1974). Therefore, even if the Lieutenant Governor's contention is meritorious, Erum possesses standing to challenge the whole of section 12-41's ballot access restrictions in his capacity as a registered voter. See Baker v. Carr, 369 U.S. 186, 206, 82 S.Ct. 691, 704, 7 L.Ed.2d663 (1962). ⁶

III

No "litmus-paper test" exists for evaluating constitutional challenges to ballot access restrictions. ⁷ Munro v. Socialist Workers Party, 479 U.S. 189, 193, 107 S.Ct. 533, 536, 93 L.Ed.2d 499 (1986) (quoting Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 1279, 39 L.Ed.2d 714 (1974)). In ruling on such challenges, "there is 'no substitute for the hard judgments that must be made.' " Anderson v. Celebrezze, 460 U.S. 780, 789-90, 103 S.Ct. 1564, 1570-71, 75 L.Ed.2d 547 (1983) (quoting Storer, 415 U.S. at 730, 94 S.Ct. at 1279). Instead, a court must weigh (1) the character and magnitude of the asserted injury to first and fourteenth amendment rights that the plaintiff seeks to vindicate; and (2) the precise interests put forward by the State as justifications for the burden imposed by its rule. Anderson, 460 U.S. at 789, 103 S.Ct. at 1570; see also Storer, 415 U.S. at 730, 94 S.Ct. at 1279. "In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights." Anderson, 460 U.S. at 789, 103 S.Ct. at 1570.

In weighing these factors here, we rely in large measure on Munro, which upheld a Washington statute quite similar to Hawaii's section 12-41, one which also conditions certain candidates' access to the general election ballot on receiving a minimum number of votes in the primary. 479 U.S. at 199, 107 S.Ct. at 539.

With respect to the character and magnitude of the asserted injury to Erum's first and fourteenth amendment rights, we acknowledge that restrictions upon the access of independent candidates to the ballot impinge upon the fundamental rights of individuals to associate for political purposes, as well as the rights of qualified voters to cast their votes effectively. Anderson, 460 U.S. at 787-88, 103 S.Ct. at 1569-70; Illinois State Elections Bd. v. Socialist Workers Party, 440 U.S. 173, 184, 99 S.Ct 983, 990, 59 L.Ed.2d 230 (1979); see also Munro, 479 U.S. at 193, 107 S.Ct. at 536 (minor party candidate restrictions) (citing Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968)). Nevertheless, the effect on a candidate's constitutional rights is "slight" when a state affords a candidate easy access to the primary election ballot and the opportunity to wage a ballot-connected campaign. Munro, 479 U.S. at 199, 107 S.Ct. at 539. Here, Erum only had to submit a petition signed by fifteen eligible voters to gain access to the primary ballot. This certainly qualifies as "easy access." Therefore, in light of Munro, the burden the Hawaii statutory scheme imposes on Erum's constitutional rights is "slight."

As for Hawaii, the Lieutenant Governor has advanced essentially three major interests in support of section 12-41's ballot access restrictions, the first two of which have served to justify such restrictions in other contexts. ⁸

First, the Lieutenant Governor sets forth Hawaii's interest in "combatting unrestrained factionalism," an interest which the Court held to be compelling and sufficiently weighty to justify California's one-year disaffiliation provision in Storer, 415 U.S. at 736, 94 S.Ct. at 1282. Second, he advances Hawaii's interest in "avoid[ing] voter confusion and overcrowded ballots," recognized in Munro as legitimate to support Washington's minimum vote requirement. Munro, 479 U.S. at 196, 107 S.Ct. at 538; see also Clements v. Fashing, 457 U.S. 957, 965, 102 S.Ct. 2836, 2844, 73 L.Ed.2d 508 (1982).

Erum contends that because differences exist between the Hawaii election law he challenges here and the Washington statutory scheme, reliance on Munro is misplaced. We address these differences one-by-one.

First, Erum points out that the Washington statute relates to minor-party candidates, while the Hawaii statute pertains to independent candidates. This difference is of little or no consequence, however. The Court has used ballot access restriction cases interchangeably whether the statute at issue restricts access by minor party candidates or nonpartisan candidates, or both. See, e.g., Munro, 107 S.Ct. at 537-38 (citing Anderson and Storer, both of which evaluated independent candidate restrictions).

Second, Erum points out that while the Washington statute operates in conjunction with a "blanket primary" statute that allows primary voters to vote for candidates of all parties regardless of office, Hawaii's statutory scheme prevents this type of "cross-over voting." Haw.Rev.Stat. Sec. 12-31. A statute similar in effect to the Hawaii ban on "cross-over" voting, however, one which precludes those who voted in the party primary from signing an independent candidate's petition, has passed constitutional muster. See American Party v. White, 415 U.S. 767, 789-91, 94 S.Ct. 1296, 1310-11, 39 L.Ed.2d 744 (1974).

Third, Erum notes that the Washington statute requires that a minor party candidate only receive at least one percent of all votes cast for the office for which the candidate runs, not ten percent, as in Hawaii. The...