Hudler v. Austin

• Decision Date: 18 August 1976
• Docket Number: Civ. No. 6-71189 and 6-71249.
• Citation: 419 F. Supp. 1002
• Parties: James HUDLER, et al., Plaintiffs, v. Richard H. AUSTIN, in his official capacity as Secretary of State, and Bernard J. Apol, in his official capacity as Director of Elections and Secretary of the State Board of Canvassers for the State of Michigan, Defendants. Stephanie ALLAN et al., Plaintiffs, v. Richard AUSTIN, Individually and in his official capacity as Secretary of State, et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

419 F. Supp. 1002

James HUDLER, et al., Plaintiffs, v. Richard H. AUSTIN, in his official capacity as Secretary of State, and Bernard J. Apol, in his official capacity as Director of Elections and Secretary of the State Board of Canvassers for the State of Michigan, Defendants.

Stephanie ALLAN et al., Plaintiffs, v. Richard AUSTIN, Individually and in his official capacity as Secretary of State, et al., Defendants.

Civ. Nos. 6-71189 and 6-71249.

United States District Court, E. D. Michigan, S. D.

August 18, 1976.

COPYRIGHT MATERIAL OMITTED

Richard Durant, Detroit, Mich. for plaintiffs Hudler, and others.

Ronald Reosti, and Diane Middleton, Detroit, Mich., for plaintiffs Allan, and others.

Varda N. Fink, State Atty. Gen. Office, Lansing, Mich., for defendants.

Before ENGEL, Circuit Judge and GUY and FEIKENS, District Judges.

OPINION

GUY, District Judge.

Plaintiffs in this action challenge the constitutionality of certain of Michigan's election statutes, i. e., M.C.L.A. § 168.685 and §§ 168.560a and 168.560b, providing for the qualification of "new" parties for general election ballot positions. "New" parties are those parties who either failed to run candidates for office in the last state-wide election or whose principal candidate failed to obtain 1% of the total number of votes cast for the successful candidate for Secretary of State in such election. M.C.L.A. § 168.560a.

Prior to the passage of the challenged sections, the Michigan election law only required that "new" parties, to qualify for ballot position, must submit petitions bearing the signatures of registered electors equivalent to not less than 1% nor more than 4% of the vote received by the successful candidate for Secretary of State at the last election. Plaintiff political parties have consistently satisfied this requirement through 1976.

In April of 1976, the Michigan legislature passed Public Act 94 (M.C.L.A. § 168.685 and §§ 168.560a and 168.560b) providing, in addition to the petition requirement, that new parties must receive a vote total of three-tenths of 1% of the total number of voters appearing at the primary as shown by the poll books. A separate column or row on the primary election ballot is to list the names of those parties having met the petition requirement following the statement, "I desire that the party indicated shall have its name, party vignette, and candidates listed on the next general election ballot." M.C.L.A. § 168.560b(1), (2), (4). Thus, a voter at the primary may vote for the candidates of any one party listed on the ballot or indicate a desire for a ballot position for a "new" party and its candidates at the next general election. M.C. L.A. § 168.560b(3).

Plaintiffs challenge Public Act 94 as (1) impermissibly burdening the right of individuals to associate for the advancement of political beliefs and the right of effective franchise secured by the First and Fourteenth Amendments, (2) as violative of the equal protection clause of the Fourteenth Amendment resulting in invidious discrimination against new parties and their supporters, and (3) as contravening the due process clause of the Fourteenth Amendment in that Act 94 was imposed after plaintiffs, or at least some of them, had completed or nearly completed gathering petitions under the previously existing statutory requirements and so close to the primary date as to effectively deprive them of the opportunity to apprise the voting public in general, and their supporters in particular, of the necessity of primary election support if the "new" parties in question are to appear on the November general election ballot.

I.

The First Amendment's protection of the right of franchise is "a fundamental political right because it is preservative of all rights." Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 1071, 30 L.Ed. 220 (1886). It has clearly been recognized, however, that each state has a legitimate interest, if not a duty, to protect the integrity of its political processes from frivolous or fraudulent candidacies, and is not constitutionally obligated to provide instantaneous access to the ballot. Jenness v. Fortson, 403 U.S. 431, 432, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971); Storer v. Brown, 415 U.S. 724, 736, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1973). Indeed, Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968), a leading case dealing with this general subject, noted that at least 42 of the states impose on "new" parties a petition requirement similar to that which has existed as part of the Michigan law. Id. at 33n, 89 S.Ct. 5. These exercises of legislative power are based on Article 1, Section 4, Clause 1 of the Constitution authorizing the states to prescribe "The Times, Places, and Manner of holding Elections for Senators and Representatives." The mere existence of restrictions on ballot access, therefore, raises no issue of validity unless they violate prohibitions elsewhere in the Constitution. Williams, supra, 393 U.S. at 29, 89 S.Ct. 5.

In setting forth the standard against which access to the ballot restrictions should be tested, the majority in Williams indicated that any restrictions on such fundamental rights as are involved here would receive strict scrutiny, and that the burdens placed upon the rights of franchise and association could only be sustained if justified by a "compelling state interest." 393 U.S. at 31, 89 S.Ct. 5.

Although striking down the Ohio election laws involved as an "entangling web" which "made it virtually impossible for a new political party . . . to be placed on the state ballot . . .", the court, as pointed out in Justice Warren's dissent, gave little guidance to either the states or other courts as to what constitutes a reasonable ballot regulation. 393 U.S. at 69-70, 89 S.Ct. 5.

Both the dissent and the majority in Williams agree that a state can condition ballot regulation "upon at least three considerations—a substantial showing of voter interest in the candidate seeking a place on the ballot, a requirement that this interest be evidenced prior to the election, and a party structure demonstrating some degree of political organization." 393 U.S. at 70, 89 S.Ct. at 31.¹ The application of the "strict scrutiny" test and its interrelation with legitimate state purposes in regulating ballot access has been elaborated upon and qualified in other Supreme Court cases.

"The rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical correlative effect on voters. Of course, not every limitation or incidental burden on the exercise of voting rights is subject to a stringent standard of review. McDonald v. Board of Election, 394 U.S. 802 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969). The filing fee statute at issue does not place a condition on the exercise of the right to vote, nor does it quantitatively dilute votes that have been cast. Rather, the filing fee statute creates barriers to candidate access to the primary ballot, thereby tending to limit the field of candidates from which voters might choose. The existence of such barriers does not of itself compel close scrutiny. Compare Jenness v. Fortson, 403 U.S. 431 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971), with Williams v. Rhodes supra. In approaching candidate restrictions, it is essential to examine in a realistic light the extent and nature of their impact on voters." Bullock v. Carter, 405 U.S. 134, 143, 92 S.Ct. 849, 856, 31 L.Ed.2d 92 (1971).

Although there appears to be a variance among the decided cases as to when the "strict scrutiny" standard is to be applied, it is clear that in all the cases dealing with this subject there is a balancing of the burden of the restrictions against the interest of the state in their promulgation.

American Party of Texas v. White, 415 U.S. 767, 780, 94 S.Ct. 1296, 1305, 39 L.Ed.2d 744 (1973) notes:

"Whether the qualifications for ballot position are viewed as substantial burdens on the right to associate or as discriminations against parties not polling 2% of the last election vote, their validity depends upon whether they are necessary to further compelling state interests."

Storer, supra, 415 U.S. at 729, 94 S.Ct. at 1278, states with reference to Ohio's statutes at issue in Williams:

"Because these restrictions, which were challenged under the Equal Protection Clause, severely burdened the right to associate for political purposes and the right to vote effectively, the Court, borrowing from other cases, ruled that discriminations against new parties and their candidates had to be justified by compelling state interests."

See also Kusper v. Pontikes, 414 U.S. 51, 58, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973); Mogk v. City of Detroit, 335 F.Supp. 698 (E.D.Mich. 1971) (three-judge court).

Williams' assessment of the constitutional impact of the burden imposed by Ohio's challenged election law was that it made it "virtually impossible for any party to qualify on the ballot except the Republican and Democratic Parties." 393 U.S. at 25, 89 S.Ct. at 8. Although the facts in this case do not support such a conclusion with respect to Act 94, the court does conclude that strict scrutiny is called for in the examination of the challenged Michigan statute because the candidate restrictions at issue have a real and appreciable impact on those citizens and voters who organized and support the "new" parties bringing this action and constitute a "substantial" burden on their rights to associate and exercise an effective franchise. Petition signatures in excess of 175,000 have been submitted for the 1976 election on behalf of the seven new parties at bar. Unless the .3% primary performance requirement for ballot qualification is now satisfied, the candidates of those "new" parties will be denied a position on the general election ballot in November. In balancing these "substantial burdens" against the "compelling state interest," the...