McLain v. Meier

• Decision Date: 18 December 1979
• Docket Number: No. 79-1115,79-1115
• Citation: 612 F.2d 349
• Parties: Harley McLAIN, Appellant, v. Ben MEIER, Secretary of State and Allen Olsen, Attorney General, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 349

612 F.2d 349

Harley McLAIN, Appellant, v. Ben MEIER, Secretary of State and Allen Olsen, Attorney General, Appellees.

No. 79-1115.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 8, 1979.

Decided Dec. 18, 1979.

Harley J. McLain, pro se briefs.

Allen I. Olson, Atty. Gen., and Owen L. Anderson, Asst. Atty. Gen., Bismarck, N. D., on brief, for appellees.

Stephen L. Pevar, American Civil Liberties Union, Denver, Colo., on supplemental brief, for appellant.

Brian R. Bjella, Asst. Atty. Gen., Bismarck, N. D., on supplemental brief, for appellees.

Before LAY, HEANEY and HENLEY, Circuit Judges.

HENLEY, Circuit Judge.

This appeal in a civil rights case is from the United States District Court for the District of North Dakota. At the general election held in that State in November, 1978 plaintiff, Harley McLain, ran unsuccessfully for the position of Representative from North Dakota in the United States House of Representatives (Congressman). He ran as an independent candidate or as the candidate of a nonrecognized political party known as Chemical Farming Banned. He was opposed by nominees of the Democrat and Republican Parties and by another independent, Don J. Klingensmith, who represented an organization known as National Statesman.

The election was held on Tuesday, November 7, 1978. Plaintiff commenced his action pro se the day before the election and sought declaratory and preliminary and permanent injunctive relief. His position was that the form of ballot about to be used in the election discriminated against independent candidates and candidates of small minority parties in violation of the first and fourteenth amendments to the Constitution of the United States. His prayer for a preliminary injunction was motivated by his desire to prevent the holding of the election the next day, at least as far as the office of Congressman was concerned. Federal jurisdiction was predicated on 28 U.S.C. § 1331(a) and on 28 U.S.C. § 1343(3) read in connection with 42 U.S.C. § 1983. The defendants in the case were the Secretary of State of the State of North Dakota, who has substantial responsibilities in the field of state elections, and the Attorney General of that State.

The district court denied preliminary relief, and the election was held. Thereafter, the defendants, hereinafter at times referred to as the State, moved to dismiss the complaint for failure to state a claim upon which relief could be granted. Fed.R.Civ.P. 12(b)(6). That motion was supported by a full brief that had attached to it a copy of a voting machine ballot that had been approved by a three-judge district court in Pennsylvania in a case involving the election of some City Councilmen in Philadelphia, the election involved being held in 1969. Gilhool v. Chairman and Commissioners, Philadelphia County Board of Elections, 306 F.Supp. 1202 (E.D.Pa.1969), Aff'd on motion, 397 U.S. 147, 90 S.Ct. 996, 25 L.Ed.2d 182 (1970).

Plaintiff, still proceeding pro se, filed an equally full brief opposing the defense motion. That brief was supported by a copy Two days after filing his brief in the district court the plaintiff amended it for the purpose of asserting a claim for both compensatory and punitive damages. Plaintiff also requested that the district court hear oral argument. Plaintiff never sought leave to amend the complaint itself, and that pleading was never amended.

of the general election ballot that was used in Cass County (Fargo), North Dakota in 1978 and that was typical of the paper ballots used throughout the State. Also attached to the brief as exhibits were a number of drawings making up a diagrammatical analysis of the ballot designed to show its alleged discrimination against the plaintiff and other independent candidates and small minority parties.

The district court declined to hear oral argument, and on December 28, 1978 filed what amounted to a memorandum opinion summarily dismissing the complaint.

While the ultimate conclusion of the district court is couched in Fed.R.Civ.P. 12(b)(6) terms, that is to say, the district court concluded that the complaint did not state a claim upon which relief could be granted, it is clear that the district court considered material outside the complaint itself and was, therefore, required to treat the motion as one for summary judgment governed by Fed.R.Civ.P. 56. In other words, the district court evidently found that the case presented no genuine issue as to a material fact, and that the defendants were entitled to judgment as a matter of law.

Judgment of dismissal having been entered, plaintiff perfected a pro se appeal and filed a pro se brief. He also filed a pro se reply brief after the State had filed its principal brief. Thereafter, the American Civil Liberties Union (ACLU) entered into the case in support of the plaintiff and was permitted to file on his behalf a supplemental brief; the State was permitted to file a repy to that brief, which it has done, and all of the briefs have been considered. The case has been submitted without oral argument.

We have given careful consideration to the record and we vacate the judgment of the district court on procedural grounds.

I.

Public elections in North Dakota, as elsewhere, are governed by statute, and the North Dakota laws relative to elections appear in the various subchapters and subdivisions of Chapter 16 of the North Dakota Century Code (N.D.C.C.). ¹ We make general reference to that Chapter of the Code; specific references to particular sections will be made as the opinion proceeds.

Like other States, North Dakota has primary, general and special elections. Laying special elections to one side, most North Dakota elections are conducted along political party lines, although there are some elections that specifically are "no-party." The dominant political parties in North Dakota are the Republicans and the Democrats, and North Dakota is generally thought of as a "Republican" state.

The two major parties just mentioned naturally have formal party organizations and are active politically from election to election. The nominees of those parties for offices to be voted on in general elections gain their nominations as the result of party primaries which all recognized political parties in North Dakota are required to hold. The primary elections are held on the first Tuesday in September of each year in which a general election is held. Chapter 16-04-01. And general elections are held on the Tuesday immediately following the first Monday in November of each even numbered year. Chapter 16-06-01.

Only one primary election is held and only one primary ballot is used. All participating parties appear on that ballot and the ballot is arranged in "party columns" running across the ballot from left to right. See in general Chapter 16-04 including The two major parties are automatically assured "party columns" on the primary election ballot. Chapter 16-04-20(1) and (2). A third party which was able in the preceding general election to poll at least 5% Of the total number of votes cast for Governor is also entitled to a "party column" on the primary election ballot. Chapter 16-04-20(3). What we will call a "new party" may gain recognition as a party and may secure a column on the primary election ballot if, before June 1 of the year in which the general election is to be held, it files a petition with the Secretary of State asking for a place on the primary ballot. The petition must contain a statement of the platform principles of the new party and must be signed by not less than 15,000 qualified electors. Chapter 16-04-20(4). ²

Chapter 16-04-13, 16-04-15.1, 16-04-16, 16-04-17, and 16-04-20.

A person who desires to run for office in a North Dakota general election and who is not the nominee of a recognized political party within the terms of Chapter 16-04 may have access to the ballot as an independent or as an "individual nomination." Chapter 16-03. In order to have his name placed on the ballot, the independent, who may be the representative of an organized group that is not recognized as a qualifying political party, must file with the Secretary of State, if he is running for a state or district office, not less than forty days before the general election a "certificate of nomination" or petition signed by not less than three hundred qualified electors. Chapter 16-03-02. If the independent so desires, he may have his name followed by a statement of five words or less setting out his "party or principle." Ibid.

All certificates of nomination, including party nominees and independent candidates for state or district office (including Congressman) must be filed with the Secretary of State not later than forty days prior to the general election, Chapter 16-05-03; and the Secretary of State, in turn, certifies the nominations to the respective County Auditors, Chapter 16-05-04.

We are concerned here principally with the form and arrangement of the general election ballot, a subject that is dealt with in detail in Chapter 16-11. The form of the ballot is prescribed by chapter 16-11-05, and we set that section out in full:

The official ballots provided for in this title for partisan election at general elections in precincts in which voting machines are not used shall be prepared as follows:

1. The ballots shall be of sufficient width to contain all of the tickets to be voted for, under the appropriate party designation for each;

2. On the left-hand side of such ballot shall be a column designating the office to be voted for, and on the same line, in the column under the appropriate party designation of each, all of the names of the candidates duly nominated for that office shall be printed;

3. The names of candidates under headings designating each official position shall be alternated on the official ballot in the printing in the same manner as is provided in the primary election ballot;

4. The names of...