LaRouche v. Kezer, 2:92-CV-00095 (PCD).

• Decision Date: 09 March 1992
• Docket Number: No. 2:92-CV-00095 (PCD).,2:92-CV-00095 (PCD).
• Citation: 787 F. Supp. 298
• Parties: Lyndon H. LaROUCHE, Jr., et al., v. Pauline R. KEZER, Secretary of State.
• Court: U.S. District Court — District of Connecticut

787 F. Supp. 298

Lyndon H. LaROUCHE, Jr., et al., v. Pauline R. KEZER, Secretary of State.

No. 2:92-CV-00095 (PCD).

United States District Court, D. Connecticut.

February 28, 1992.

Memorandum of Decision on Motion for Reconsideration March 9, 1992.

Martha Stone, Jonel Newman, Connecticut Civil Liberties Union, Hartford, Conn., for plaintiffs.

Daniel Schaefer, Charles H. Benson, Asst. Attys. Gen., Atty. General's Office, Sp. Litigation, Hartford, Conn., for defendant.

MEMORANDUM OF DECISION

DORSEY, District Judge.

Parties

Plaintiffs LaRouche and McCarthy are erstwhile candidates for nomination by the Democratic Party to be President of the United States. They sought to be placed on the presidential preference ballot in the Party's primary scheduled in accordance with Connecticut law for March 24, 1992. Their request was denied by defendant, who is sued in her official capacity as the Secretary of State of Connecticut. The remaining plaintiffs allege they are voters in Connecticut, registered with the Democratic Party, who wish and intend to vote for either Mr. LaRouche or Mr. McCarthy.

Claims

LaRouche and McCarthy allege their right, under the First and Fourteenth Amendments to the Constitution of the United States, as prospective candidates, to be placed on the primary ballot. The remaining plaintiffs allege their right, under the same amendments, to the full exercise of their right to vote for LaRouche or McCarthy, the candidate of their choice. Exhibits 1-7. The statute provides for two methods by which a candidate can be placed on the ballot. The first is by the Secretary's determination that a person is recognized in the news media as a serious and recognized candidate. The second is by a petition filed with a number of signatures. Plaintiffs claim that the first is vague and arbitrary and the second is so burdensome as to deprive a prospective candidate of any meaningful opportunity to obtain placement on the ballot.

Proceedings

Upon filing their complaint, on February 6, 1992, plaintiffs moved for a preliminary injunction, seeking essentially the same relief as is finally sought here, a declaration that both procedures, by which placement of a name on the primary ballot is accomplished, are unconstitutional on the face of the statute, Conn.Gen.Stat. § 9-465, et seq., and, as applied to defendant, that defendant should be barred from any steps in the primary process unless LaRouche and McCarthy are included on the ballot. An order to show cause issued and hearings were conducted around other trials, commencing on February 11, 1992 and concluding on February 20, 1992. Briefs were filed, the last on February 26, 1992.

Facts

The voter plaintiffs are registered Democrats and have expressed a wish and intent to vote for either LaRouche or McCarthy.

The principal statute is Conn.Gen.Stat. § 9-465, which delegates to the Secretary of State the authority to prepare the ballot for the parties' presidential preference primary, including the determination of the names to be included thereon. The decision as to a particular candidate is to be based on whether "the candidacy of such person ... is generally and seriously advocated or recognized according to reports in the national or state news media." § 9-465(a). Alternatively, a name is so placed if a petition signed by 6,518 party registered voters, on behalf of the candidate, is filed. § 9-465(b). The Secretary placed two names on the Democratic Party ballot even though not requested to do so. The others so placed filed requests and provided documentation in the form of news media clippings. Though requested, the Secretary declined to place either of the plaintiff candidates on the ballot even though documentation in their support was furnished. The Secretary did not follow any written procedure or criteria for her decisions as to whether a candidacy was "generally and seriously advocated or recognized". "Generally" is defined as without precision or limitation; broad; all encompassing. It is the epitome of vagueness. "Seriously" is meant to connote earnestness, with somber reflection. The Secretary and her deputy conducted no organized or searching inquiry as to the status of any candidacy. See Exhibit 26B. Nothing in the statute mandates the Secretary's seeking out candidates nor their qualification. In late 1991, anticipating the problem, they listed six Democrats that were seen as reasonably likely to be entitled to be placed on the Democratic Party ballot. Except for one candidate, Mr. Wilder, who publicly withdrew, all were placed on the ballot, including two who made no formal request. The Secretary did not require a request, as the statute did not require such. The Secretary and her deputy were attentive to several news media with which they were familiar, within the state and circulated into the state. These included The Hartford Courant; two local radio station news broadcasts; Time and Newsweek magazines; The New Britain Herald; other state papers which were seen from time to time but not consistently; and one or the other local TV station news broadcasts. No clipping service was obtained. No informational service search for news articles was obtained. As media articles were brought to her attention, they were considered. There was no organized staff gathering of articles. No record of most of what is above described was created. Individual files were created for all candidates considered and written material received was there filed, although some material pertained to more than one candidate and was only filed once. See Exhibit 21.

The Secretary decided that five of the original six listed — Brown, Clinton, Harkin, Kerry and Tsongas — met the test of § 9-465(a) and were placed on the Democratic ballot. Mr. Agran was also placed based on items in his folder which included his own releases and reports of voter support (20 and 2 per cent respectively). One item considered was a Westport Connecticut paper's report of a fund raising event for Agran by two residents the Secretary considered active and involved in political affairs. Two references to him in the Hartford Courant, January 25 and 26, 1992, Exhibit 21, were negative. Along with President Bush and Mr. Buchanan, Mr. Duke was placed on the Republican ballot, without any reflection of news media reporting in his file, a decision the Secretary accompanied with a two-page statement, one and one-half of which articulated why he should not be so placed. See Exhibit 16. The Secretary noted extensive news coverage of Duke, largely related to controversial stands he has taken.¹ She was not uninfluenced, as quoted in the Journal-Inquirer on January 26, 1992, by the view of the Attorney General that a suit challenging a failure to put Duke on the ballot could not be defended, Exhibit 47, or, as he put it, he would have to decide if that were the case. Exhibit 46. A total of 39 names were considered. Exhibit 20.

The Secretary regarded practically any news media as embraced in the statute. Thus, all Connecticut papers would be included, along with its radio and TV stations. Widely circulated or broadcast media outside the state would also be considered.² The Secretary looked to the quantity of media reports as well as their substance in applying the statute. Thus, for example, a substantial fraction of LaRouche's documentation mentioned him as a candidate but in the same breath referred to his present imprisonment. Much of McCarthy's material was noted by her to have been published in campaigns of four, eight, and even twelve years ago, yet there was evidence of current articles in which he is mentioned in the New York Times; Christian Science Monitor; Washington Post; and Des Moines Register. Exhibit 21. No standard nor criteria was used to limit what publications would be considered nor with what relative weight. No standard nor criteria was developed by which to determine that a candidacy was advocated, by whom, by how many, with what degree of commitment, or enthusiasm to constitute advocacy. Nor was a standard promulgated by which to measure a sufficient degree of recognition nor by whom. Both LaRouche and McCarthy are making an effort, or one is being made on their respective behalf, to promote their candidacies. Exhibits 10; 11; 11A-E; 12A-B; 14; 15A-C; 17; 28-29; 31-35; 39-44. Both have supporters working on their behalf. Both LaRouche and McCarthy have put before the Secretary news articles from prior elections. No standard or criteria has been promulgated by which an appropriate weight can be attributed to news articles by their age. There was no standard nor criteria as to the relative significance in the candidates' own press releases, advertisements, polls, placement on the ballots of other states and on what basis.³ No log or record of electronic media appearances was maintained. There was evidence of such appearances, some nationally broadcast. Exhibits 10; 11; 17; 55; 56. The Secretary provides no guide or advice to candidates on how to assure their being placed on the ballot. Indeed, she expressed a concern that if she did so she could be faulted for not being impartial among the prospects. She sends all who inquire or seem to be likely candidates a letter setting forth the technical requirements for being placed on the ballot. Exhibit 25.

Neither of the candidate plaintiffs attempted to obtain placement on the ballot by petition which required 6,518 signatures of registered Democrats. Exhibit 48. There was evidence of varying petition requirements in the number of signatures required and the time in which they were required to be obtained. Exhibit 36. At 1% with a two-week period, Connecticut's were among the most stringent. While there was evidence that suggested it was impossible, and no one has petitioned successfully since the statute was enacted in 1977, there was no evidence that any of the witnesses who so testified had been involved in an actual attempt to do...