Libertarian Party of Nebraska v. Beermann, Civ. No. 84-L-451.

• Citation: 598 F. Supp. 57
• Decision Date: 31 August 1984
• Docket Number: Civ. No. 84-L-451.
• Parties: LIBERTARIAN PARTY OF NEBRASKA; an unincorporated voluntary association; Daniel Salem, an individual; Barbara Flick, an individual; and Beverley Starkey, an individual, Plaintiffs, v. Allen BEERMANN, Secretary of State of the State of Nebraska; and Paul L. Douglas, Attorney General of the State of Nebraska, Defendants.
• Court: U.S. District Court — District of Nebraska

598 F. Supp. 57

LIBERTARIAN PARTY OF NEBRASKA; an unincorporated voluntary association; Daniel Salem, an individual; Barbara Flick, an individual; and Beverley Starkey, an individual, Plaintiffs, v. Allen BEERMANN, Secretary of State of the State of Nebraska; and Paul L. Douglas, Attorney General of the State of Nebraska, Defendants.

Civ. No. 84-L-451.

United States District Court, D. Nebraska.

August 31, 1984.

Lavern R. Holdeman, Nelson, Morris & Holdeman, Lincoln, Neb., for plaintiffs.

Terry R. Schaaf, Asst. Atty. Gen., Lincoln, Neb., for defendants.

OPINION

VAN PELT, Senior District Judge.

The plaintiffs, the Libertarian Party of Nebraska, an unincorporated voluntary association and three individuals to wit: Daniel Salem, Barbara Flick, and Beverley Starkey, all residents of Douglas County, Nebraska, brought this action in the United States District Court for the District of Nebraska against Allen Beermann, Secretary of State, and Paul L. Douglas, Attorney General. The Secretary of State in Nebraska is responsible for the conduct of state elections, including the certification of parties and candidates for a position on the general election ballot. Jurisdiction is claimed under 28 U.S.C. Section 1331(a); 28 U.S.C. Section 1391(b); 28 U.S.C. Sections 1651, 2201, 2202; 42 U.S.C. Sections 1983, 1988.

Plaintiffs sought to enjoin defendants from enforcing Subsections (1), (3), and (8) of Nebr.Rev.Stat., Section 32-526 (1982 Cum.Supp.), which pertain to the formation of new political parties by petition, alleging violations of their First and Fourteenth Amendment rights to freedom of speech and association and due process under color of state law. This suit was instituted three weeks before the state statutory deadline of August 1, 1984, for submitting petitions to place a new political party upon the general election ballot. The hearing in this case was held July 26, 1984. An Order was entered July 30, 1984 (see filing 10).

The parties stipulated and the Court finds that the following facts are uncontested. The relevant portions of Nebr.Rev. Stat., Section 32-526 (1982 Cum.Supp.)¹ reads as follows, with the contested language underscored:

32-526. New political party; formation; procedure; violations; penalty.

(1) In order to form a new political party there shall be presented to the Secretary of State petitions containing signatures totaling not less than one per cent of the total votes cast for the office of Governor at the most recent general election for such office. The signatures of registered electors on such petitions must be so distributed as to include qualified registered electors totaling at least one per cent of the votes cast for Governor in the most recent gubernatorial election in each of at least one-fifth of the counties in this state.... If the new political party desires to be established and have ballot position for the general election and not in the primary of that year, such petitions must be filed with the Secretary of State on or before August 1 of that year.... The form of the petition for the formation of a new party shall be substantially as follows:

FORMATION OF A NEW POLITICAL PARTY

The object of this petition is to form a new political party in the State of Nebraska to be known as ____________.

To the Honorable ____________, Secretary of State for the State of Nebraska:

We, the undersigned qualified and registered voters of the State of Nebraska, and the county of ___________, being severally qualified to sign this petition, respectfully request that the above named new political party be formed in the State of Nebraska, and each for himself or herself says: I have personally signed this petition on the date opposite my name; I am a qualified voter of the State of Nebraska, and county of ____________, and am qualified to sign this petition; my city, village, or post-office address, and my street and street number or voting precinct, are correctly written after my name.

Further, we the undersigned hereby pledge to support the new party, support its candidates and to change our registration to affiliate with such new party.

. . . . .

(3) Every circulator of a petition shall be, not less than the constitutionally prescribed age of an elector, and a resident, and registered voter of the State of Nebraska and of the county wherein the petitioners reside.

. . . . .

(8) Any person signing any name other than his or her own to any petition or knowingly signing his or her name more than once, or who is not, at the time of signing or circulating the same, a legal voter and qualified to sign or circulate the same, or any person who shall falsely swear to any signature upon any such petition, or any officer or person willfully violating any provision of this section, shall be guilty of a Class V misdemeanor.

In the 1982 gubernatorial election 547,902 legal voters cast ballots for the office of governor. The Court finds a minimum of one percent of this number is 5480. Therefore, to comply with the statute, 5480 names must be collected to place a new party on the ballot.

Nebraska now has, and has had for some time in the past, 93 counties legally formed and acting as such. Thus, circulating in and filing of petitions from one-fifth of 93 counties as provided in N.R.S. Section 32-526(1) requires that petitions be obtained from not less than 19 counties.

It was further agreed between attorneys for the parties that in the event any injunctive relief was granted to plaintiffs, to which the defendants do not consent by the stipulation, that defendants would have 20 days after August 1, 1984, to wit: to and including August 20, 1984, to place the name of plaintiff Libertarian Party of Nebraska on the ballot in Nebraska to be used at the November 6, 1984, general election with the same force and effect as though the plaintiffs had submitted their completed petitions on or before August 1, 1984. The Court approved this agreement.

Plaintiffs allege that the portion of Section 32-526(1) which requires signatures equalling one percent of the electors voting in the previous gubernatorial race in each of at least 19 counties is a violation of the "one man, one vote" principle. It is claimed that this section unconstitutionally infringes upon their freedom of speech and association under the First Amendment. The portion of subsection (1), Section 32-526 which requires petitioners to support the new party, support its candidates, and to change their registration to affiliate with the new party is also claimed to be an unconstitutional infringement of their rights of free speech and association. Plaintiffs further allege that subsection (3) of Section 32-526 requiring that petition circulators be residents and registered voters of the State of Nebraska and of the county wherein they are circulating petitions unduly burdens their efforts to form a new political party and, as a result, is also an unconstitutional restriction on the exercise of their First and Fourteenth Amendment Rights.

Defendants claim that such requirements are necessary to advance legitimate State interests in protecting the integrity and efficiency of the electoral system and, as such, are valid and constitutional exercises of the State's power.

By reason of the nature of the matter and the stipulations of the parties, the Court concluded that an Order should be entered immediately after due consideration of the arguments presented at the hearing. Such Order was entered July 30, 1984. In this Order, the Court reserved the right to file a Memorandum or Opinion which would constitute its Findings of Fact and Conclusions of Law as soon as was reasonably possible, with the same effect as though filed prior to or as part of the Order.

Upon consideration of the facts and arguments presented in this case, the Court finds that part of Section 32-526(1) which requires signatures equal to the one percent of the persons voting in the 1982 gubernatorial race to be distributed among at least 19 counties to be unconstitutional and void as a violation of the "one man, one vote" principle. It also finds that portion of Section 32-526(1) which requires signers of petitions for the formation of new parties to pledge to support the party, support its candidates, and to change their registration to affiliate with the petitioning party is unconstitutional and void as an invasion of privacy, to freedom of choice and the right to cast a secret ballot. The Court further finds that N.R.S. Section 32-526(3) requiring petition circulators to be registered voters and residents of the state and county in which they are circulating petitions is a valid exercise of the state's power to protect its compelling interest in maintaining the integrity of the election process by preventing fraud and misrepresentation among petition circulators.

In this case, plaintiff, Libertarian Party of Nebraska, was requesting a temporary restraining order or a preliminary injunction. The criteria to be considered before such an order or injunction is issued are set forth by the Court of Appeals of the Eighth Circuit in Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109 (8th Cir.1981).

Whether a preliminary injunction should issue involves consideration of (1) the threat or irreparable harm to the movant; (2) the state of balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest. Id. at 114.

There can be little argument about the importance of the issues involved here. "No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined." Williams v. Rhodes, 393 U.S. 23, 31, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968), quoting Wesberry v. Sanders, 376 U.S....