McCarthy v. Secretary of Com.

• Decision Date: 04 January 1977
• Parties: Eugene J. McCARTHY et al. v. SECRETARY OF the COMMONWEALTH et al. (and a companion case 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 291

359 N.E.2d 291

371 Mass. 667

Eugene J. McCARTHY et al.

v.

SECRETARY OF the COMMONWEALTH et al. (and a companion case

¹).

Supreme Judicial Court of Massachusetts, Suffolk.

Submitted Sept. 23, 1976.

Decided Jan. 4, 1977.

Francis X. Bellotti, Atty. Gen., Thomas R. Kiley and Ernest P. DeSimone, Asst. Attys. Gen., for defendants.

Martin C. Gideonse, Cambridge, for plaintiffs.

Before HENNESSEY, C.J., and REARDON, QUIRICO, BRAUCHER, KAPLAN and WILKINS, JJ.

HENNESSEY, Chief Justice.

By a previously issued order of this court, we directed the Secretary of the Commonwealth to place the names of the plaintiffs Eugene J. McCarthy and John H. Stouffer ² on all ballots prepared for the November 2, 1976, general election as independent candidates for the offices of President and Vice President of the United States, respectively. Due to the extreme time constraints imposed by the impending election and the advance time necessary to prepare ballots, we issued an order without opinion. We now issue this opinion to explain the reasoning which led to our order and to answer the serious questions raised by McCarthy with respect to ballot access by independent candidates.

The facts of these cases demonstrate that McCarthy apparently complied with the statutory requirements by obtaining more than the requisite number of signatures for obtaining a place on the general election ballot but was nevertheless burdened further with the massive and difficult, if not impossible, task of proving the validity of a sufficient number of those signatures. The burden of rechecking large numbers of signatures within the severe time constraints imposed by the electoral process is such that we hold herein that the Legislature did not intend to impose such an indefensible burden on the candidate. This conclusion is particularly evident in a case such as this one where there is no evidence regarding the reasons for rejection of signatures by local registrars and, indeed, no evidence that the registrars fully performed their checking function at all. Given the fundamental importance of affording a fair and reasonable means of ballot access to independent candidates, we further hold that judicial review of the signature certification process is necessary to safeguard the integrity of the electoral process and to effectuate the legislative intent to afford such access. Furthermore, the burden of proof must be placed on the Secretary of the Commonwealth to demonstrate that there were valid reasons for noncertification of signatures, rather than forcing the candidate to negate all potential reasons for rejection for each particular contested signature.

In these cases effective judicial review in the Superior Court was practically possible only because of the cooperation of the Secretary of the Commonwealth with the court, in that the Secretary voluntarily reviewed a large number of voting lists and petitions and entered into a stipulation as to contested signatures. However, as will appear later in this opinion, that stipulation, necessary and helpful though it was toward a resolution of the dispute, still did not entirely relieve McCarthy of the impermissibly heavy burden placed on him.

The sole route to the general election ballot for independent candidates ³ is the procedure specified by G.L. c. 53, §§ 6--10. ⁴ We summarize that procedure with respect to the specific facts pertaining to McCarthy's quest for ballot status.

To attain a place on the general election ballot, an independent candidate must file with the Secretary of the Commonwealth nomination petitions 'signed in the aggregate by not less than such number of voters as will equal two per cent of the entire vote cast for governor at the preceding biennial state election in the commonwealth at large . . ..' G.L. c. 53, § 6, as amended through St.1973, c. 849. The number of signatures required to attain a place on the November, 1976, ballot was 37,096. The nomination petitions were made available on or about April 6, 1976, twelve weeks prior to the final date for filing signed petitions with the Secretary of the Commonwealth. G.L. c. 53, § 47, as amended through St.1975, c. 352, § 3. The deadline for filing papers with the Secretary of the Commonwealth was July 6, 1976, seventeen Tuesdays prior to the general election. G.L. c. 53, § 10. Under G.L. c. 53, § 7, the nomination petitions were required to be submitted to the registrars of voters for the municipalities from which signatures had been gathered for the process of certification of the signatures as valid signatures of registered voters at least seven days prior to the final date for filing with the Secretary, in this case, June 29, 1976.

McCarthy submitted approximately 8,000 nomination petitions containing approximately 50,000 signatures to the registrars of voters of approximately 275 municipalities. The municipal registrars must 'check each name to be certified by them on the nomination paper and shall forthwith certify thereon the number of signatures so checked which are names of voters both in the city or town and in the district for which the nomination is made, and only names so checked shall be deemed to be names of qualified voters for the purposes of nomination.' G.L. c. 53, § 7, as amended through St.1974, c. 200, § 1.

After certification by the municipal registrars, the petitions were returned to the plaintiffs and filed with the Secretary of the Commonwealth on July 6, 1976, as required by G.L. c. 53, §§ 9--10. On July 9, 1976, the plaintiffs were notified by the Secretary that the petitions submitted to him contained only 34,934 certified signatures, or 2,162 fewer certified signatures than were required by law and that, therefore, the Secretary would not place McCarthy's name on the November ballot. On the same date the plaintiffs filed an objection with the State Ballot Law Commission ('commission') seeking review of the Secretary's refusal to certify the candidacy of McCarthy and Stouffer. Having been notified that a hearing would be held before the commission on July 20, 1976, the plaintiffs sought a continuance based on the time needed to perform the massive task of rechecking the approximately 16,000 noncertified signatures against voter registration lists. The commission granted a continuance until July 23, 1976.

During the period July 9--23, 1976, the plaintiffs reviewed petitions from Boston, Revere, and Brookline. They reviewed approximately 1,257 noncertified signatures and asserted that 419 of these signatures should have been certified in the first instance. At the hearing before the commission the plaintiffs offered to prove these facts and offered to introduce expert testimony regarding the statistical inferences which could be drawn from the data regarding the projected Statewide error rate in noncertification. The commission refused to admit this evidence and found that McCarthy had failed to submit sufficient credible evidence that his petitions contained the required number of certified signatures. The commission therefore ordered that McCarthy's name not be placed on the November ballot.

The plaintiffs thereupon brought two actions in the Superior Court which were consolidated for trial. One action was a petition under G.L. c. 30A, § 14, for judicial review of the decision of the State Ballot Law Commission. The other action was brought pursuant to G.L. c. 56, § 59, which gives this court and the Superior Court general equity jurisdiction to enforce the provisions of the election laws, including the provisions of G.L. c. 53. This action named as defendants the Secretary of the Commonwealth, and John Robinson, chairman of the Boston Board of Election Commissioners, in his individual capacity and as representative of the class of all officials charged with performing the certification procedure under G.L. c. 53, § 7. ⁵ This action sought injunctive relief ordering the Secretary to place McCarthy's name on the November ballot and a declaratory judgment that McCarthy had met the substantive requirements of G.L. c. 53 or that the provisions of G.L. c. 53 are unconstitutional in that they fail to provide for meaningful review of the actions of local registrars.

The plaintiffs continued the rechecking process and by August 26, 1976, the date of the Superior Court hearing, had rechecked about 10,000, or sixty per cent, of the total number of noncertified signatures, a process which involved rechecking all nomination petitions from eleven municipalities. The cases were heard on the complaint and answer, a statement of agreed facts by the parties, and the introduction of documentary evidence. The statement of agreed facts contained a statement that the defendant had examined the same documents as had the plaintiffs and stipulated that 2,470 signatures were substantially as registered, but not necessarily certifiable. The plaintiffs contended that 2,547 noncertified signatures were certifiable in the first instance. McCarthy campaign workers had spent approximately 800 hours in the performing of this rechecking process.

After a hearing and findings of fact which included a finding that the 2,470 signatures stipulated by the defendants to be substantially as registered were certifiable in the first instance, a Superior Court judge ordered that the names of McCarthy and Stouffer be placed on the November ballot, ruling that McCarthy had met the substantive requirements of G.L. c. 53 and that G.L. c. 53, §§ 7, 11--12, and G.L. c. 6, §§ 29--32, were unconstitutional as applied in this case because they denied candidates meaningful review of the certification process. The judge dismissed the plaintiffs' appeal under G.L. c. 30A, § 14, from the commission's decision.

The Secretary of the Commonwealth filed a notice of appeal and sought a stay pending appeal, the application for which was denied by the Superior Court judge. A similar application was thereupon filed with this court...