Fair v. Taylor, Civ. No. 72-296

• Decision Date: 23 April 1973
• Docket Number: 72-299,72-341 and 72-187.,Civ. No. 72-296
• Citation: 359 F. Supp. 304
• Parties: Jim FAIR, Individually, and as representative of similarly situated residents of the State of Florida, Plaintiff, v. J. F. TAYLOR, as Clerk of the Circuit Court of Hillsborough County, Florida, and the State of Florida, Defendants. Charles MIRANDA, Individually, Plaintiff, v. James A. SEBESTA, as Supervisor of Elections of Hillsborough County, Florida, et al., Defendants. June HARTWICK et al., Plaintiffs, v. Richard STONE, as Secretary of State of the State of Florida and as Commissioner of Elections, et al., Defendants. William S. MULLON et al., Plaintiffs, v. Richard STONE, as Secretary of State of the State of Florida, Defendant.
• Court: U.S. District Court — Middle District of Florida

359 F. Supp. 304

Jim FAIR, Individually, and as representative of similarly situated residents of the State of Florida, Plaintiff, v. J. F. TAYLOR, as Clerk of the Circuit Court of Hillsborough County, Florida, and the State of Florida, Defendants.

Charles MIRANDA, Individually, Plaintiff, v. James A. SEBESTA, as Supervisor of Elections of Hillsborough County, Florida, et al., Defendants.

June HARTWICK et al., Plaintiffs, v. Richard STONE, as Secretary of State of the State of Florida and as Commissioner of Elections, et al., Defendants.

William S. MULLON et al., Plaintiffs, v. Richard STONE, as Secretary of State of the State of Florida, Defendant.

Civ. Nos. 72-296, 72-299, 72-341 and 72-187.

United States District Court, M. D. Florida, Tampa and Orlando Divisions.

April 23, 1973.

Florida Rural Legal Services, Pompano Beach, Fla., for plaintiffs in No. 72-341.

Minnis & Williams, St. Petersburg, Fla., for intervenor.

Jim Fair, pro se.

Arthur T. McDonald, Tampa, Fla., for interested plaintiffs in No. 72-296.

Steve A. Di Dio, Tampa, Fla., for plaintiff in No. 72-299.

Robert L. Shevin, Atty. Gen. State of Florida, and Barry Scott Richard, Deputy Atty. Gen., Tallahassee, Fla., for defendants in Nos. 72-296 and 72-341.

Richard P. Condon, in pro. per.

G. Steven Pfeiffer, of Trenam, Simmons, Kemker, Scharf & Barkin, Tampa, Fla., for defendants in Nos. 72-187 and 72-299.

Warren M. Cason, County Atty., by Michael J. O'Brien, Resident County Atty., Tampa, Fla., for Taylor and Sebesta.

Kent Spriggs, Tallahassee, Fla., for intervenor Bush; Charles Morgan, Jr., Morris Brown, Emily Carssow, Neil Bradley, Atlanta, Ga., of counsel.

Before RONEY, Circuit Judge, and KRENTZMAN and HODGES, District Judges.

BY THE COURT:

In these consolidated cases, plaintiffs, aspiring candidates for public office, challenge as unconstitutional those sections of Florida's election law which require that a candidate for a political party's nomination pay, as a condition of qualifying, five percent of the annual salary of the office sought. Fla.Stat. §§ 99.061, 99.092, and § 105.031, F.S.A. Prior Three Judge Federal District Courts and the Supreme Court of Florida have consistently held the Florida law to be constitutional. Spillers v. Slaughter, 325 F.Supp. 550 (M.D.Fla.1971); Fowler v. Adams, 315 F.Supp. 592 (M. D.Fla.1970); Wetherington v. Adams, 309 F.Supp. 318 (N.D.Fla.1970); Differenderfer v. Porter Homer (No. 68-455-Civ.Ec., S.D.Fla.1968); Bodner v. Gray, 129 So.2d 419 (Fla.1961).

These decisions were grounded on the conclusion that the state has a valid interest in assuring that (1) a nominee be the choice of a majority of party members, (2) the primary ballot be reasonably restricted in size so that a true majority choice can be made without an excessive number of "run-offs," and (3) spurious candidates be eliminated. The filing fee was held to be a valid means of achieving these ends.

Since those decisions, however, the United States Supreme Court has established a constitutional standard for filing fee systems that now requires us to reach a contrary result. Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L. Ed.2d 92 (1971).

In Bullock, the Court was concerned with the Texas election system which required payment of a filing fee as an absolute condition to primary ballot position. No alternative to the fee was provided. Although the Texas system employed a non-uniform fee that was exorbitant in some instances, contrary to the Florida uniform fee in reasonable amount, we think the thrust of Bullock renders unconstitutional a filing system which does not provide, as a method for qualification, an alternative to the payment of a substantial sum of money.

The Supreme Court held that a system which provides no alternative to the payment of a substantial fee places unequal emphasis on the wealth of both potential candidates and voters. Chief Justice Burger, speaking for the Court, explained that the very size of the fees imposed under the Texas system gives it a patently exclusionary character.

Many potential office seekers lacking both personal wealth and affluent backers are in every practical sense precluded from seeking the nomination of their chosen party, no matter how qualified they might be and no matter how broad or enthusiastic their popular support. The effect of this exclusionary mechanism on voters is neither incidental nor remote. Not only are voters substantially limited in their choice of candidates, but also there is the obvious likelihood that this limitation would fall more heavily on the less affluent segment of the community, whose favorites may be unable to pay the large costs required by the Texas system. To the extent that the system requires candidates to rely on contributions from voters in order to pay the assessments, a phenomenon that can hardly be rare in light of the size of the fees, it tends to deny some voters the opportunity to vote for a candidate of their choosing; at the same time it gives the affluent the power to place on the ballot their own names or the names of persons they favor. Appellants do not dispute that this is endemic to the system. This disparity in voting power based on wealth cannot be described by reference to discrete and precisely defined segments of the community as is typical of inequities challenged under the Equal Protection Clause, and there are doubtless some instances of candidates representing the views of voters of modest means who are able to pay the required fee. But we would ignore reality were we not to recognize that this system falls with unequal weight on voters, as well as candidates, according to their economic status.

405 U.S. at 143-144, 92 S.Ct. at 856. Thus, concluded the Court,

By requiring candidates to shoulder the costs of conducting primary elections through filing fees and by providing no reasonable alternative means of access to the ballot, the State of Texas has erected a system that utilizes the criterion of ability to pay as a condition to being on the ballot, thus excluding some candidates otherwise qualified and denying an undetermined number of voters the opportunity to vote for candidates of their choice. These salient features of the Texas system are critical to our determination of constitutional invalidity.

405 U.S. at 149, 92 S.Ct. at 859.

This is not to say that filing fees are invalid per se. Bullock specifically noted that "nothing herein is intended to cast doubt on the validity of reasonable candidate filing fees or licensing fees in other contexts." 405 U.S. at 149, 92 S. Ct. at 859.

We adhere to the prior decisions on the Florida statute which hold that a 5% filing fee, uniformly applied, is reasonable in amount and a valid means for the State to achieve its legitimate goal of controlling the ballot. Under Bullock, however, the State must provide an alternate method of obtaining a place on the ballot that does not involve the payment of a substantial sum of money to the State.

Because of the immediacy of the 1972 election and Florida's qualifying period which terminated at twelve o'clock noon on July 25, 1972, we entered an Order dated July 11, 1972, providing for an alternative method to the payment of the fee that would serve the purpose of the plaintiffs and other similarly situated until the Florida Legislature has had an opportunity to determine an alternative that meets constitutional standards. A copy of that Order is appended to this opinion.

APPENDIX

BY THE COURT:

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