Kay v. Mills
| Decision Date | 02 May 1980 |
| Docket Number | Civ. A. No. 80-11. |
| Parties | Richard B. KAY v. Frances Jones MILLS, Secretary of State, Frankfort, Kentucky; Raymond F. Bossmeyer, Member of State Board of Elections; Earl Searcy, Member of State Board of Elections. |
| Court | U.S. District Court — Eastern District of Kentucky |
C. Thomas Anderson, Gen. Counsel, Com. of Ky., John F. Zink, Asst. Atty. Gen., Frankfort, Ky., for defendants.
Richard B. Kay, in pro. per.
This action arises out of the attempt by Richard Kay, an announced candidate for the Democratic party nomination as President of the United States, to have his name placed on the ballot in the Kentucky Presidential Primary.
The Statutes of the Commonwealth of Kentucky allow candidates for the presidential nomination of political parties two ways to gain access to the primary ballot. The applicable statutes are:
In October of 1978, the plaintiff, Richard Kay, held a press conference in Washington, D.C., where he announced that he would seek the presidential nomination of the Democratic party. Running a "one-man campaign" he appeared in 30 states, meeting frequently with representatives of the news media. He appeared on the presidential primary ballots in New Hampshire, Georgia, Florida, and Louisiana, and will appear on the ballot in Ohio.
In early 1980, Mr. Kay notified the Kentucky State Board of Elections of his desire to appear on the Kentucky Democratic presidential primary ballot through K.R.S. 118.580. To aid the Board in its determination that he fit the description in the statute, he sent a packet containing articles and stories concerning his candidacy which had been published in various newspapers around the country. In February of 1980, in a further effort to educate the Board as to his status, he informed it that he had been placed on the ballot in Florida and Georgia under statutes similar to K.R.S. 118.580.
On February 14, 1980, the defendant Mills, acting in her capacity as chairman of the State Board of Elections, notified the plaintiff Kay that his name had been placed on the list for nomination, and he would be officially notified after the nominations were made.
On April 2, 1980, the State Board of Elections met to select names to be placed on the presidential primary ballot. The statute which determines the membership of the Board is K.R.S. 117.015. The Board consists of the Secretary of State and two members appointed by the Governor. The two appointed members are drawn, one each, from lists of five names submitted by the State Central Executive Committee of each of the two political parties that polled the largest vote in the last preceding election for state officials. Presently, Earl Searcy is the Republican member and Ray Bossmeyer is the Democratic member.
At the April 2nd meeting the Board placed Benjamin Fernandez of California, Ronald Reagan of California, Harold Stassen of Washington, D.C., John Anderson of Washington, D.C., and George Bush of Texas on the Republican ballot. On the Democratic side Jimmy Carter of Georgia, Edward Kennedy of Massachusetts, and Clifford Finch of Mississippi were placed on the ballot. All the names which were placed on the ballot were so placed through K.R.S. 118.580. No candidates used the petition method provided in K.R.S. 118.590.
Two candidates, Lyndon LaRoche and the plaintiff Richard Kay, who had submitted their names to the Board as potential Democratic candidates were not placed on the ballot.
The evidence shows that the Board has no regulations or fixed criteria used to distinguish between candidates which it deems "generally advocated and nationally recognized as candidates" and those it does not. The plaintiff was not notified that he was not to be placed on the ballot until on his own initiative he contacted the State Board of Elections on April 11, 1980.
Promptly thereafter, namely on April 14, 1980, the plaintiff Kay filed this action in the Frankfort division of this court. On the same day, by order of Hon. Bernard T. Moynahan, Jr., Chief Judge of the United States District Court for the Eastern District of Kentucky, the case was assigned to the undersigned judge. A motion for a temporary restraining order and/or preliminary injunction having been filed with the complaint herein, the case was set for a hearing on such motion and all other pending matters on April 17, 1980.
At the hearing of April 17, Mr. Kay appeared in propria persona, presented evidence under oath and submitted affidavits. Testimony was heard from a representative of the Board of Elections, and certain stipulations were also made with regard to the procedures of the Board and other matters.
Because of the exigencies of the time limitations involved, after an initial review of the law, the court entered a preliminary injunction on April 23, 1980, prohibiting the printing or distribution of the ballots unless plaintiff's name appeared thereon. That injunction must now be made permanent.
The defendants have raised the argument that the eleventh amendment bars an action of this type. However, the court is persuaded that this action, brought against the individual defendants rather than the state and purely prospective in the relief it seeks, falls squarely in the exception to the eleventh amendment bar enunciated in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). In that case the Supreme Court determined that while the eleventh amendment does ordinarily bar federal courts from ordering states to give monetary relief, it does not ordinarily prevent courts from requiring state officers to comply with federal injunctions. See also, Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).
The defendants further assert in connection with their eleventh amendment argument that no relief can be granted to the plaintiff in the way of placing him on the ballot since the statute instructs the board to meet and act 55 days before the date fixed for the primary election. Therefore, the defendants argue, no official action can be ordered except retroactively, since the date has passed and no other date is authorized by the statute. This argument is without merit.
The State Board of Elections certainly has inherent power to correct, at a later time, any mistakes made at the meeting specified. It should be further noted that the statute in question and related statutes which refer to the meeting are not couched in exclusionary language. That is to say, while the statute clearly calls for a meeting 55 days before the primary election, it does not say the State Board cannot meet at other times and take appropriate actions in the face of unexpected events.
Courts and commentators have failed to define clearly the nature of the right asserted by a candidate seeking access to the ballot on a constitutional basis. The defendants correctly point out that a state does have legitimate interests in regulating elections. One such interest is the prevention of voter confusion by limiting the number of persons on the ballot and discouraging frivolous candidacies. See Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971); Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968).
The defendants also assert that a person has no constitutional right to have his name placed on the ballot. This is an oversimplification, since a state must exercise its conceded power to regulate elections in a constitutional manner. As with any other matter which the state has power to regulate, it cannot impose limitations on access to the ballot which constitute a denial of equal protection or due process of law in contravention of the fourteenth amendment to the Constitution of the United States. Bullock v. Carter, 405 U.S. 134, 141, 92 S.Ct. 849, 854, 31 L.Ed.2d 92 (1972).
Thus, in Williams v. Rhodes, supra, the Court said:
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