Kusper v. Pontikes 8212 1631

• Citation: 414 U.S. 51,38 L.Ed.2d 260,94 S.Ct. 303
• Decision Date: 19 November 1973
• Docket Number: No. 71,71
• Parties: Stanley T. KUSPER, Jr., et al., Appellants, v. Harriet G. PONTIKES. —1631
• Court: United States Supreme Court

414 U.S. 51

94 S.Ct. 303

38 L.Ed.2d 260

Stanley T. KUSPER, Jr., et al., Appellants,

v Harriet G. PONTIKES.

No. 71—1631.

Argued Oct. 9, 1973.

Decided Nov. 19, 1973.

Syllabus

Appellee, a qualified Chicago voter who voted in a February 1971 Republican primary involving nominations for municipal officers, challenges the constitutionality of § 7—43(d) of the Illinois Election Code, under which she was barred from voting in a March 1972 Democratic primary. Section 7—43(d) prohibits a person from voting in the primary election of a political party if he has voted in the primary of any other party within the preceding 23 months, an exception being made if the primary is of a 'political party within a city . . . only.' Appellants contended, inter alia, that the three-judge District Court, which held the three-judge District should have abstained because the state courts might have found the statutory exception applicable to the 1971 primary. Held:

1. The District Court did not err in declining to abstain from making a constitutional ruling in view of an Illinois Supreme Court adjudication confining the statutory exception to political parties entitled to nominate only for city offices and making it inapplicable to the Democratic and Republican parties. Appellee is thus not relieved of the bar of the 23-month rule. Pp. 53—56.

2. Section 7—43(d) unconstitutionally infringes upon the right of free political association protected by the First and Fourteenth Amendments by 'locking' the voter in his pre-existing party affiliation for a substantial period of time following his participation in any primary election, and the State's legitimate interest in preventing party 'raiding' cannot justify the substantial restraint of the 23-month rule. Rosario v. Rockefeller, 410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1, distinguished. Pp. 56—61.

345 F.Supp. 1104, affirmed.

Aldus S. Mitchell, Jr., Chicago, Ill., for appellants.

Ray Jeffrey Cohen, Chicago, Ill., for appellee.

Mr. Justice STEWART delivered the opinion of the Court.

Under § 7—43(d) of the Illinois Election Code, a person is prohibited from voting in the primary election of a political party if he has voted in the primary of any other party within the preceding 23 months.¹ Appellee, Harriet G. Pontikes, is a qualified Chicago voter who voted in a Republican primary in February 1971;² she wanted to vote in a March 1972 Democratic primary, but was barred from doing so by this 23-month rule.³ She filed a complaint for declaratory and injunctive relief in the United States District Court for the Northern District of Illinois, alleging that § 7—43(d) unconstitutionally abridged her freedom to associate with the political party of her choice by depriving her of the opportunity to vote in the Democratic primary. A statutory three-judge court was convened,⁴ and held, one judge dissenting, that the 23-month rule is unconstitutional. 345 F.Supp. 1104.⁵ We noted probable judiction of this appeal from that judgment. 411 U.S. 915, 93 S.Ct. 1540, 36 L.Ed.2d 306.⁶

I

At the outset, we are met by the appellants'⁷ argument that the District Court should have abstained from adjudicating the constitutionality of the 23-month rule. They base this argument upon that portion of § 7—43(d) which provides that:

'(P)articipation by a primary elector in a primary of a political party which, under the provisions of Section 7—2 of this Article, is a political party within a city, village or incorporated town or town only and entitled hereunder to make nominations of candidates for city, village or incorporated town or town offices only, and for no other office or offices, shall not disqualify such primary elector from participating in other primaries of his party . . ..' Ill.Rev.Stat., c. 46, § 7—43(d).

The appellants note that the February 1971 Republican primary election in which Mrs. Pontikes voted involved only nominations for the offices of mayor, city clerk, and city treasurer of the city of Chicago. They claim that the state courts might interpret this 1971 primary to have been one of a 'political party within a city . . . only,' and thus outside the purview of the 23-month rule.

As we stated in Lake Carriers' Assn. v. MacMullan, 406 U.S. 498, 509, 92 S.Ct. 1749, 1756, 32 L.Ed.2d 257:

'Abstention is a 'judge-made doctrine . . ., first fashioned in 1941 in Railroad Commission v. Pullman Co., 312 U.S. 496 (61 S.Ct. 643, 85 L.Ed. 971), (that) sanctions . . . escape (from immediate decision) only in narrowly limited 'special circumstances,' Propper v. Clark, 337 U.S. 472, 492 (69 S.Ct. 1333, 1344, 93 L.Ed. 1480),' Zwickler v. Koota, 389 U.S. 241, 248 (88 S.Ct. 391, 395, 19 L.Ed.2d 444) (1967), justifying 'the delay and expense to which application of the abstention doctrine inevitably gives rise.' England v. (Louisiana State Board of) Medical Examiners, 375 U.S. 411, 418 (84 S.Ct. 461, 466, 11 L.Ed.2d 440) (1964).'⁸

The paradigm of the 'special circumstances' that make abstention appropriate is a case where the challenged state statute is susceptible of a construction by the state judiciary that would avoid or modify the necessity of reaching a federal constitutional question. Zwickler v. Koota, 389 U.S. 241, 249, 88 S.Ct. 391, 396, 19 L.Ed.2d 444; Harrison v. NAACP, 360 U.S. 167, 176—177, 79 S.Ct. 1025, 1030, 3 L.Ed.2d 1152. Abstention in such circumstances not only serves to minimize federal-state friction, but also avoids premature and perhaps unnecessary constitutional adjudication. Harman v. Forssenius, 380 U.S. 528, 534, 85 S.Ct. 1177, 1181, 14 L.Ed.2d 50. But the doctrine of abstention 'contemplates that deference to state court adjudication only be made where the issue of state law is uncertain.' Ibid., 85 S.Ct., at 1182. Where, on the other hand, it cannot be fairly concluded that the underlying state statute is susceptible of an interpretation that might avoid the necessity for constitutional adjudication, abstention would amount to shirking the solemn responsibility of the federal courts to 'guard, enforce, and protect every right granted or secured by the constitution of the United States,' Robb v. Connolly, 111 U.S. 624, 637, 4 S.Ct. 544, 551, 28 L.Ed. 542.

We think that the Illinois statute involved in this case is not fairly susceptible of a reading that would avoid the necessity of constitutional adjudication. The appellants' argument—that the February 1971 Chicago Republican primary might be considered that of a 'political party within a city . . . only'—is foreclosed by the decision of the Illinois Supreme Court in Faherty v. Board of Election Comm'rs, 5 Ill.2d 519, 126 N.E.2d 235. That decision made it clear that the kind of 'local' primaries that are outside the scope of § 7—43(d) are simply those of "purely city . . . political part(ies)"—those parties entitled, under § 7—2 of the Illinois Election Code, to make nominations for city offices only. Id., at 524, 126 N.E.2d, at 238.⁹

Since both the Democratic and Republican parties are, of course, entitled in Illinois to make nominations not only for city offices, but for congressional, state, and county offices as well, the Faherty court held that they were not within the statutory definition of 'city' parties. It follows then, that despite the fact that the February 1971 Republican primary in which the appellee voted involved only nominations for offices within the city of Chicago, Mrs. Pontikes was still clearly barred by the 23-month rule from voting in the March 1972 Democratic primary.¹⁰ The District Court was thus wholly justified in declining to abstain from deciding the constitutional validity of the 23-month rule, and it is to that issue that we now turn.

II

There can no longer be any doubt that freedom to associate with others for the common advancement of political beliefs and ideas is a form of 'orderly group activity' protected by the First and Fourteenth Amendments. NAACP v. Button, 371 U.S. 415, 430, 8o S.Ct. 328, 336, 9 L.Ed.2d 405; Bates v. Little Rock, 361 U.S. 516, 522—523, 80 S.Ct. 412, 416, 4 L.Ed.2d 480; NAACP v. Alabama, 357 U.S. 449, 460—461, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488. The right to associate with the political party of one's choice is an integral part of this basic constitutional freedom. Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 10, 21 L.Ed.2d 24. Cf. United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508.

To be sure, administration of the electoral process is a matter that the Constitution largely entrusts to the States.¹¹ But, in exercising their powers of supervision over elections and in setting qualifications for voters, the States may not infringe upon basic constitutional protections. See, e.g., Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274; Kramer v. Union School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583; Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675. As the Court made clear in Williams v. Rhodes, supra, unduly restrictive state election laws may so impinge upon freedom of association as to run afoul of the First and Fourteenth Amendments. 393 U.S., at 30, 89 S.Ct., at 10. And see id., at 35 41, 89 S.Ct., at 12—15 (Douglas, J., concurring); id., at 41—48, 89 S.Ct., at 15—19 (Harlan, J., concurring).

There can be little doubt that § 7—43(d) substantially restricts an Illinois voter's freedom to change his political party affiliation. One who wishes to change his party registration must wait almost two years before his choice will be given effect. Moreover, he is forced to forgo participation in any primary elections occurring within the statutory 23-month hiatus. The effect of the Illinois statute is thus to 'lock' the voter into his pre-existing party affiliation for a substantial period of time following participation in any primary election, and each succeeding primary vote extends this period of confinement.

The 23-month rule does not, of course, deprive those in the appellee's position of all...