McLain v. Meier, 80-1656

• Citation: 637 F.2d 1159
• Decision Date: 28 October 1980
• Docket Number: No. 80-1656,80-1656
• Parties: Harley McLAIN, Appellant, v. Ben MEIER, Secretary of State and Allen Olson, Attorney General, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1159

637 F.2d 1159

Harley McLAIN, Appellant, v. Ben MEIER, Secretary of State and Allen Olson, Attorney

General, Appellees.

No. 80-1656.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 9, 1980.

Decided Oct. 21, 1980.

Rehearing Denied Oct. 28, 1980.

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

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

Before HENLEY and McMILLIAN, Circuit Judges, and VAN PELT, District Judge. ^*

HENLEY, Circuit Judge.

Harley McLain, an independent candidate for the United States Congress from North Dakota in the November, 1978 election, appeals the district court's ¹, 496 F.Supp. 462, denial of declaratory and permanent injunctive relief, alleging that his constitutional rights under the first and fourteenth amendments have been violated by three of North Dakota's election laws. North Dakota Century code (hereinafter N.D.C.C.) §§ 16-04-20(4); 16-11-06; and 16-11-05(4). ² McLain contends that both the ballot access and ballot format aspects of these statutes are unconstitutional.

The district court reviewed each of the statutes under the rational basis standard and concluded that they can withstand constitutional scrutiny. For reasons to be stated, we reverse in part and affirm in part.

I. BACKGROUND

In summer, 1978 McLain organized the political group "Chemical Farming Banned," registering it with the Federal Election Commission. ³ He subsequently attempted to file as the group's party candidate for Representative in the United States House of Representatives, but was disqualified by the requirement of N.D.C.C. § 16-04-20(4) that a new party candidate wishing to appear on the ballot as a party representative earn a ballot position by submitting 15,000 signatures by June 1 of the election year. McLain was able, however, to qualify as an independent, non-party candidate by complying with N.D.C.C. § 16-03-02, submitting 300 supporting signatures not less than forty days before the general election. 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."

Two weeks before the 1978 election, McLain first viewed the ballot which would be used. ⁴ He thereafter registered with the North Dakota Secretary of State his complaint that each independent candidate had not been given a separate column on the ballot. Upon obtaining no satisfaction McLain filed a pro se complaint one day before the election in which he sought declaratory, preliminary and permanent injunctive relief, including prevention of the election the next day. The district court denied preliminary injunctive relief and the election was held, with McLain receiving 1.5% of the votes cast .

The defendants in this case, the Secretary of State for North Dakota and the State Attorney General (hereinafter "the State"), subsequently moved to dismiss McLain's complaint for failure to state a claim upon which relief could be granted. The district court, after considering the motion and various exhibits, on December 28, 1978 rendered what amounted to a summary judgment in favor of the defendants. On appeal this court vacated the district court's decision and remanded the case for further proceedings, specifying that the district court should permit a clarifying amendment of McLain's pro se complaint so as to draw North Dakota statutes §§ 16-04-20 and 16-11-05 clearly into the controversy. McLain v. Meier, 612 F.2d 349 (8th Cir. 1979).

With the aid of counsel, on remand McLain filed an amended complaint which was followed by additional discovery and a hearing in district court. Ultimately, the district court again entered judgment, accompanied by an as yet unpublished opinion, dismissing McLain's complaint. McLain v. Meier, No. A78-3075 (D.N.D. July 15, 1980). (McLain v. Meier, 496 F.Supp. 462 (D.N.D.1980))

McLain appeals the judgment of dismissal pursuant to 28 U.S.C. § 1291. ⁵

A. The Ballot Access Statute: N.D.C.C. § 16-04-20(4).

The North Dakota access statute, N.D.C.C. § 16-04-20(4), provides a single method of ballot access for a "new" political party. Such a party may field candidates designated as its nominees "if a petition signed by fifteen thousand or more electors of this state is filed with the secretary of state before four o'clock p. m. on June first of any primary election year." N.D.C.C. § 16-04-20(4). ⁶ The record shows that 15,000 signatures are nearly 3.3% of North Dakota's electorate. The filing deadline of June 1 is more than ninety days before the primary election ⁷ and more than one hundred fifty days before the general election. ⁸

The district court found that these filing requirements did not have a "real and appreciable impact on the exercise of the franchise," McLain v. Meier, supra, at 468, citing Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972). In the absence of a substantial burden on the fundamental rights of voting and political association the court reviewed the access statute under the rational basis standard, and concluded that the access requirements were rationally related to the state's legitimate objective of avoiding confusion, deception and frustration of the democratic process. The district court observed that the State's objectives were served by requiring a showing of support before printing the name of a political organization's candidate on the ballot.

Ballot access statutes are not susceptible of easy analysis, nor is the appropriate standard of review always easy to discern. See, e. g., Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 188-90, 99 S.Ct. 983, 992-994, 59 L.Ed.2d 230 (1979) (opinions of Blackmun, J., concurring, and Stevens, J., concurring in the judgment); Rosario v. Rockefeller, supra, 410 U.S. at 767, 93 S.Ct. at 1254 (Powell, J., dissenting); Socialist Workers Party v. March Fong Eu, 591 F.2d 1252, 1261 n.5 (9th Cir. 1978), cert. denied, 441 U.S. 946, 99 S.Ct. 2167, 60 L.Ed.2d 1049 (1979). However, our reading of decisional law in this area leads us to conclude that the district court erred both as to the appropriate standard of review and as to the merits of the access statute.

The district court correctly noted that statutes affecting the right to vote must cause a discrimination "of some substance" before the compelling state interest test is triggered. American Party of Texas v. White, 415 U.S. 767, 781, 94 S.Ct. 1296, 1306, 39 L.Ed.2d 744 (1974); see also Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972); McDonald v. Bd. of Election Comm'rs. of Chicago, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969). However, this burden of proof has not been difficult to meet because "voting is of the most fundamental significance under our constitutional structure" and requires jealous protection. Illinois State Bd. of Elections v. Socialist Workers Party, supra, 440 U.S. at 184, 99 S.Ct. at 990. We have noted in the past that access restrictions must be reasonable, must be justified by reference to a compelling state interest, and may not go beyond what the state's compelling interests actually require, MacBride v. Exon, supra, 558 F.2d at 448, because the fundamental right to vote is inseparable from the right to place the candidate of one's choice on the ballot.

Accordingly, we cannot avoid a hard and realistic review of North Dakota's access statute, in which we "consider the facts and circumstances behind the (access) law, the interests which the State claims to be protecting, and the interests of those who are disadvantaged by the classification." Storer v. Brown, supra, 415 U.S. at 730, 94 S.Ct. at 1279, citing Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968) and Dunn v. Blumstein, supra, 405 U.S. at 335, 92 S.Ct. at 999. See also Mandel v. Bradley, 432 U.S. 173, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977) (remanding for further findings regarding the burden imposed on independent candidates, as determined by such variables as the time allowed for collection of signatures, the pool of potential signers, the filing deadline, and the experience of past candidates). Under this exacting standard of scrutiny, we conclude that North Dakota's access restrictions are unnecessarily oppressive, and hence unconstitutional.

Admittedly, argument can be made that North Dakota's 3.3% signature requirement is valid. Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971) (upholding 5% signature requirement); Rock v. Bryant, 459 F.Supp. 64 (E.D.Ark.), aff'd mem., 590 F.2d 340 (8th Cir. 1978) (upholding signature requirement of 3% of qualified electors or 10,000, whichever is less). However, the number of signatures required by North Dakota is significantly higher than that required in most states. See Williams v. Rhodes, supra, 393 U.S. at 47 n.10, 89 S.Ct. at 19 n.10; Storer v. Brown, supra, 415 U.S. at 739 n.10, 94 S.Ct. at 1283 n.10; Developments in the Law-Elections, 88 Harv.L.Rev. 1111, 1124 n.11 (1975). ⁹ The Supreme Court has spoken on at least one occasion of 1% of the vote for governor as "within the outer boundaries of support the State may require before according political parties ballot position." American Party of Texas v. White, supra, 415 U.S. at 783, 94 S.Ct. at 1307 (emphasis added).

Moreover, as is evident from the Supreme Court's analysis in Mandel v. Bradley, supra, 432 U.S. 173, 97 S.Ct. 2238, 53 L.Ed.2d 199, the facial validity of a signature requirement is but one indication of the constitutionality of a state's access provisions. As we indicated in MacBride, supra, 558 F.2d at 449, and as has been recognized in other contexts, American Party of Texas v. White, supra, 415 U.S. at 785, 94 S.Ct. at 1308; Rock v. Bryant, supra, 459 F.Supp. at 73-74, the time at which nominating petitions are filed can have an equal if not greater impact on the viability of third party ...