Hall v. Simcox, 84-2873

• Decision Date: 11 July 1985
• Docket Number: No. 84-2873,84-2873
• Citation: 766 F.2d 1171
• Parties: Gus HALL, et al., Plaintiffs-Appellants, v. Edwin J. SIMCOX, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1171

766 F.2d 1171

Gus HALL, et al., Plaintiffs-Appellants, v. Edwin J. SIMCOX, et al., Defendants-Appellees.

No. 84-2873.

United States Court of Appeals, Seventh Circuit.

Argued April 26, 1985.

Decided July 11, 1985.

Jeffrey Schwartz, New York City, for plaintiffs-appellants.

Arthur T. Perry, Asst. Atty. Gen., Indianapolis, Ind., for defendants-appellees.

Before WOOD and POSNER, Circuit Judges, and GRAY, Senior District Judge. ^*

POSNER, Circuit Judge.

This suit against Indiana's election officials, brought by the Communist Party, U.S.A., some of its candidates, and some people who would like to vote for its candidates, seeks to enjoin as a violation of the First Amendment an Indiana law that requires minor parties wanting to be listed on the ballot for national or statewide office to submit petitions equal to 2 percent of the number of people who voted in the last election for secretary of state. Ind.Code, Sec. 3-1-11-1. The district court dismissed the suit after a hearing and the Communist Party (as we shall for brevity denote all the plaintiffs) has appealed. Although brought before the 1984 election, which is now some months in the past, the suit is not moot, since the Communist Party hopes to field candidates in future presidential elections. See, e.g., Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1 (1969); Gjertsen v. Board of Election Comm'rs, 751 F.2d 199, 202 (7th Cir.1984).

Before 1980 the required percentage for nomination by the petition route was only .5 percent. On March 3 of that year the legislature increased the percentage to 2 percent, effective January 1, 1983. Eight presidential candidates, including the Communist Party's, appeared on the ballot in the November 1980 election, for which the old requirement of .5 percent was still in force. That was the most presidential candidates to have appeared on the Indiana ballot since 1932, when there had been six; since then there had never been more than five, until 1980. In 1984, however, with the new law in effect, there were only four presidential candidates on the Indiana ballot; and there might have been only two except for a since-dispelled ambiguity in the law which allowed two small parties that had polled .5 percent of the vote for secretary of state in the 1982 election, but much less than 2 percent, to get on the ballot. The Communist Party could not use this route (since closed) in 1984 because it had not put up a candidate for secretary of state in 1982. The Party submitted some 9,000 verified signatures, which fell far short of the 35,000 required but would just have made it under the old .5 percent rule. Since Indiana does not permit write-in votes, the Communist Party was completely excluded from the ballot. Incidentally, only very small parties follow the petition route to get on the ballot. A party that polls more than 2 percent but fewer than 10 percent of the votes cast for secretary of state is required to hold a convention to nominate its candidates, while a party that polls 10 percent or more must hold a primary election.

Although, with immaterial exceptions such as the Fifteenth Amendment's prohibition of abridging the right to vote on racial grounds, the federal Constitution does not explicitly create a right to vote, or to stand for office, or to associate in a political party (political parties were not foreseen when the original Constitution and the Bill of Rights, were adopted), the Supreme Court in recent years has found such rights to be implicit in various constitutional provisions. Of particular relevance here, the Court has allowed minor parties to challenge under the equal protection clause of the Fourteenth Amendment, or (as here) under the First Amendment (which has of course been held applicable to state action by virtue of the Fourteenth Amendment), provisions of state law that make it harder to get the candidates of such parties on the ballot. See, e.g., Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184, 99 S.Ct. 983, 990, 59 L.Ed.2d 230 (1979). But the Court has not settled on the standard to be applied in ruling on such challenges. Some cases suggest a strict standard: the state must use "the least drastic means" of restricting access to the ballot in pursuit of legitimate state interests--must avoid "overbroad restrictions." Id. at 185-86, 99 S.Ct. at 990-91; see also Williams v. Rhodes, 393 U.S. 23, 31, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968). Other cases suggest a looser standard: "the State's important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions." Anderson v. Celebrezze, 460 U.S. 780, 788, 103 S.Ct. 1564, 1569-70, 75 L.Ed.2d 547 (1983) (footnote omitted); see also id. at 788 n. 9, 103 S.Ct. at 1570 n. 9, and cases cited there. The uncertainty about the standard for judging such restrictions has been noted by the Fifth Circuit in Dart v. Brown, 717 F.2d 1491, 1501-02 (5th Cir.1983), and by several commentators. See, e.g., Tribe, American Constitutional Law 783 (1978); Case Comment, 18 Suffolk U.L.Rev. 24, 30 (1984).

If a strict standard were applied to this case, Indiana would be in trouble. While it certainly has an interest in limiting the length of the ballot in order to prevent confusion of voters, it has not shown that the protection of this interest required it to raise the petition requirement from .5 to 2 percent. If the 1984 election can be considered representative in this regard--and only time will tell--the new law will eliminate all minor parties from the presidential ballot. Maybe eight presidential candidates are too many, though Justice Harlan, concurring in Williams v. Rhodes, supra, 393 U.S. at 47, 89 S.Ct. at 19, thought not; and maybe the legislators foresaw when they raised the percentage in March 1980 that there would be eight candidates in the fall election. Still, to go from .5 percent all the way to 2 percent in one jump was abrupt, and seems to have brought the number of candidates well below the level that had seemed tolerable for at least 40 years. Since Indiana does not permit write-ins, the ballot as a method of expressing political views may be completely closed to minor parties in Indiana. Compare Jenness v. Fortson, 403 U.S. 431, 438, 91 S.Ct. 1970, 1974, 29 L.Ed.2d 554 (1971).

The consequences seem difficult to square with a test that requires that the state use the "least drastic means" possible to regulate access to the ballot. But unfortunately for the Communist Party, there is abundant judicial authority, much in the Supreme Court itself and therefore beyond our power to reexamine, for allowing states to set even higher minimum percentages than Indiana has done. See Storer v. Brown, 415 U.S. 724, 738, 746, 94 S.Ct. 1274, 1283, 1286, 39 L.Ed.2d 714 (1974) (5 percent); Jenness v. Fortson, supra (same); Populist Party v. Herschler, 746 F.2d 656, 660 (10th Cir.1984) (per curiam) (same); Libertarian Party v. Florida, 710 F.2d 790 (11th Cir.1983) (3 percent); Arutonoff v. Oklahoma State Election Bd., 687 F.2d 1375 (10th Cir.1982) (5 percent); Beller v. Kirk, 328 F.Supp. 485 (S.D.Fla.1970) (three-judge panel) (per curiam), aff'd without opinion under the name of Beller v. Askew, 403 U.S. 925, 91 S.Ct. 2248, 29 L.Ed.2d 705 (1971) (3 percent); Wood v. Putterman, 316 F.Supp. 646 (D.Md.) (three-judge panel), aff'd without opinion, 400 U.S. 859, 91 S.Ct. 104, 27 L.Ed.2d 99 (1970) (3 percent); Populist Party v. Orr, 595 F.Supp. 760 (S.D.Ind.1984) (upholding Indiana's 2 percent requirement). In many of these cases, moreover, the base to which the percentage was applied was larger than it is here. In Jenness, Libertarian Party v. Florida, and Wood, the base was all registered voters. Since many registered voters do not actually vote, this is a larger base than actual voters in a particular election, as here. In Arutunoff the base was the vote for President or (in off-year elections) for governor; here it is the vote for the secretary of state, a more obscure officer chosen in an off-year election. If we compare the 35,000 signatures required by the Indiana law with the 2.2 million votes cast in Indiana in the 1980 presidential election, see U.S. Dept. of Commerce, Bureau of the Census, Statistical Abstract of the United States 1985, at 240 (tab. 403), we see that the Indiana law required signatures equal to only 1.5 percent of the number of votes for President, which is less than a third of the requirement upheld in Arutunoff.

Granted, numbers aren't everything. In McLain v. Meier, 637 F.2d 1159, 1163-64 (8th Cir.1980), a requirement of only 15,000 signatures, fewer than in this case though equal to 3.3 percent of the electorate, was struck down--but in conjunction with other restrictions. The regulatory scheme must be considered in its entirety. Thus Jenness, where a 5 percent requirement was upheld, can be distinguished from this case by reference to the existence of a write-in alternative, a factor stressed by the Court, see 403 U.S. at 438, 91 S.Ct. at 1974, and absent here. But in many of the cases we have cited, the difficulty for the minor party of getting on the ballot was greater than in this case, once the practical difficulties of the write-in route are recognized. In Libertarian Party v. Florida, for example, which involved a more populous state than Indiana and a signatures requirement computed in terms of registered voters, the state's 3 percent requirement meant that a party had to collect more than 140,000 signatures to get on the ballot, which is four times the number required by Indiana. Even the 1 percent requirement upheld in American Party of Texas v. White, 415 U.S. 767, 783, 94 S.Ct. 1296, 1307, 39 L.Ed.2d 744 (1974), entailed two-thirds, rather than one-half, as many signatures as Indiana's 2 percent requirement (22,000 versus 35,000). Of course in one sense the more populous the state, the easier it is to get signatures--there...