Moore v. Ogilvie, 620

Decision Date05 May 1969
Docket NumberNo. 620,620
Citation89 S.Ct. 1493,23 L.Ed.2d 1,394 U.S. 814
PartiesJames L. MOORE et al., Appellants, v. Richard B. OGILVIE, etc., et al
CourtU.S. Supreme Court

Richard F. Watt, Chicago, Ill., for appellants.

John J. O'Toole and Richard E. Friedman, Chicago, Ill., for appellees.

Opinion of the Court by Mr. Justice DOUGLAS, announced by Mr. Justice BRENNAN.

This is a suit for declaratory relief and for an injunction, 28 U.S.C. §§ 2201, 2202, brought by appellants who are independent candidates for the offices of electors of President and Vice President of the United States from Illinois. The defendants or appellees are members of the Illinois Electoral Board. Ill.Rev.Stat. c. 46, § 7—14. In 1968 appellants filed with appellees petitions containing the names of 26,500 qualified voters who desired that appellants be nominated. The appellees ruled that appellants could not be certified to the county clerks for the November 1968 election because of a proviso added in 1935 to an Illinois statute requiring that at least 25,000 electors sign a petition to nominate such candidates. The proviso reads:

'* * * that included in the aggregate total of 25,000 signatures are the signatures of 200 qualified voters from each of at least 50 counties.' Ill.Rev.Stat., c. 46, § 10—3 (1967).

A three-judge District Court was convened, 28 U.S.C. §§ 2281, 2284, which, feeling bound by MacDougall v. Green, 335 U.S. 281, 69 S.Ct. 1, 93 L.Ed. 3, dismissed the complaint for failure to state a cause of action. 293 F.Supp. 411. The case is here on appeal. 28 U.S.C. § 1253.

On October 8, 1968, the same day the case was docketed, appellants filed a motion to advance and expedite the hearing and disposition of this cause. Appellees opposed the motion. On October 14, 1968, we entered the following order:

'Because of the representation of the State of Illinois that 'It would be a physical impossibility' for the State 'to effectuate the relief which the appellants seek,' the 'Motion to Advance and Expedite the Hearing and Disposition of this Cause' is denied. Mr. Justice Fortas would grant the motion.' 393 U.S. 814, 89 S.Ct. 138, 21 L.Ed.2d 90.

Appellees urged in a motion to dismiss that since the November 5, 1968, election has been held, there is no possibility of granting any relief to appellants and that the appeal should be dismissed. But while the 1968 election is over, the burden which MacDougall v. Green, supra, allowed to be placed on the nomination of candidates for statewide offices remains and controls future elections, as long as Illinois maintains her present system as she has done since 1935. The problem is therefore 'capable of repetition, yet evading review,' Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310. The need for its resolution thus reflects a continuing controversy in the federalstate area where our 'one man, one vote' decisions have thrust. We turn then to the merits.

MacDougall v. Green is indistinguishable from the present controversy. The allegations in that case were that 52% of the State's registered voters were residents of Cook County alone, 87% were residents of the 49 most populous counties, and only 13% resided in the 53 least populous counties. The argument was that a nominating procedure so weighted violates the Equal Protection Clause.

Today, in contrast, 93.4% of the State's registered voters reside in the 49 most populous counties, and only 6.6% are resident in the remaining 53 counties. The constitutional argument, however, remains the same.

Five members of the Court held in MacDougall that a State has 'the power to assure a proper diffusion of political initiative as between its thinly populated counties and those having concentrated masses, in view of the fact that the latter have practical opportunities for exerting their political weight at the polls not available to the former.' 335 U.S., at 284, 69 S.Ct. at 3. Three members of the Court dissented on the ground that the nominating procedure violated the Equal Protection Clause. One member of the Court voted not to exercise this Court's jurisdiction in equity to resolve the dispute.

While the majority cited Colegrove v. Green, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432, as their authority for denying relief and while a few who took part in Colegrove put this type of question in the 'political' as distinguished from the 'justiciable' category, 328 U.S., at 552, 66 S.Ct. at 1199 that matter was authoritatively resolved in Baker v. Carr, 369 U.S. 186, 202, 82 S.Ct. 691, 702, 7 L.Ed.2d 663. When a State makes classifications of voters which favor residents of some counties over residents of other counties, a justiciable controversy is presented. 369 U.S., at 198—204, 82 S.Ct. at 699—703.

When we struck down the Georgia county-unit system in statewide primary elections, we said:

'How then can one person be given twice or 10 times the voting power of another person in a statewide election merely because he lives in ar ural area or because he lives in the smallest rural county? Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit. This is required by the Equal Protection Clause of the Fourteenth Amendment.' Gray v. Sanders, 372 U.S. 368, 379, 83 S.Ct. 801, 808, 9 L.Ed.2d 821.

Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, held that a State in an apportionment of state representatives and senators among districts and counties could not deprive voters in the more populous counties of their proportionate share of representatives and senators.

'The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. And the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise.' 377 U.S., at 555, 84 S.Ct., at 1378.

We have said enough to indicate why MacDougall v. Green is out of line with our recent apportionment cases. The use of nominating petitions by independents to obtain a place on the Illinois ballot is an integral part of her elective system. See People ex rel. v. Board of Election Commissioners, 221 Ill. 9, 18, 77 N.W. 321, 323. All procedures used by a State as an integral part of the election process must pass muster against the charges of discrimination or of abridgment of the right to vote. United States v. Classic, 313 U.S. 299, 314—318, 61 S.Ct. 1031, 1037 1039, 85 L.Ed. 1368; Smith v. Allwright, 321 U.S. 649, 664, 64 S.Ct. 757, 765, 88 L.Ed. 897.

Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656, is not relevant to the problem of this case. There each councilman was required to be a resident of the borough from which he was elected. Like the residence requirement for state senators from a multi-district county (Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401), the place of residence did not mark the voting unit; for in Dusch all the electors in the city voted for each councilman.

It is no answer to the argument under the Equal Protection Clause that this law was designed to require statewide support for launching a new political party rather than support from a few localities. This law applies a rigid, arbitrary formula to sparsely settled counties and populous counties alike, contrary to the constitutional theme of equality among citizens in the exercise of their political rights. The idea that one group can be granted greater voting strength than another is hostile to the one man, one vote basis of our representative government.

Under this Illinois law the electorate in 49 of the counties which contain 93.4% of the registered voters may not form a new political party and place its candidates on the ballot. Yet 25,000 of the remaining 6.6% of registered voters properly distributed among the 53 remaining counties may form a new party to elect candidates to office. This law thus discriminates against the residents of the populous counties of the State in favor of rural sections. It, therefore, lacks the equality to which the exercise of political rights is entitled under the Fourteenth Amendment.

MacDougall v. Green is overruled.


Mr. Justice STEWART, with whom Mr. Justice HARLAN joins, dissenting.

I cannot join in the Court's casual extension of the 'one voter, one vote' slogan to a case that involves neither voters, votes, nor even an ongoing dispute.

First of all, the case is moot. The appellants brought this action merely as prospective 'candidates for the...

To continue reading

Request your trial
527 cases
  • Nader v. Schaffer
    • United States
    • U.S. District Court — District of Connecticut
    • July 14, 1976
    ...well as in general elections, Smith v. Allwright, 321 U.S. 649, 661, 64 S.Ct. 757, 88 L.Ed. 987 (1944); cf. Moore v. Ogilvie, 394 U.S. 814, 818, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969); and that the Secretary of the State's actions which are complained of are taken under color of state law for p......
  • Arizonans for Second Chances, Rehab., & Pub. Safety v. Hobbs
    • United States
    • Arizona Supreme Court
    • September 4, 2020
    ...the right to vote and the related right to associate with others to advance shared political beliefs. See Moore v. Ogilvie , 394 U.S. 814, 818, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969) (stating that restrictions on candidate nominating petitions implicate the fundamental right to vote); Williams ......
  • Bachur v. Democratic Nat. Party
    • United States
    • U.S. District Court — District of Maryland
    • July 29, 1987 1013 n. 13; Storer v. Brown, 415 U.S. 724, 737 n. 8, 94 S.Ct. 1274, 1282 n. 8, 39 L.Ed.2d 714 (1974); Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1 (1969). As stated in The `capable of repetition, yet evading review' doctrine, in the context of election cases, is......
  • Marin v. University of Puerto Rico
    • United States
    • U.S. District Court — District of Puerto Rico
    • January 30, 1974
    ...bound to be a matter of recurring controversy. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L. Ed.2d 147 (1973); Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969); Oil Workers Union v. Missouri, 361 U.S. 363, 80 S.Ct. 391, 4 L.Ed.2d 373 (1960). For these reasons it also make......
  • Request a trial to view additional results
7 books & journal articles
  • Rucho v. Common Cause—a Critique
    • United States
    • Emory University School of Law Emory Law Journal No. 70-5, 2021
    • Invalid date
    ..."liberal," or "progressive" for Justices with reference to the party of the President who nominated them.4. Moore v. Ogilvie, 394 U.S. 814, 819 (1969).5. Gerrymandering, Black's Law Dictionary (11th ed. 2019) (emphasis added); see also Partisan Gerrymandering, Black's Law Dictionary (11th e......
  • Oliver A. Houck, Things Fall Apart: a Constitutional Analysis of Legislative Exclusion
    • United States
    • Emory University School of Law Emory Law Journal No. 55-1, 2006
    • Invalid date
    ...See supra note 82 and accompanying text. In short, filibusters do mitigate the impacts of exclusion, but they do not remedy them. 191 394 U.S. 814, 819 (1969). 192 Paraphrasing Chief Justice Warren in Reynolds v. Sims. 377 U.S. 533, 567 (1964) (masculine reference in the original). 193 Furt......
  • Baker, Bush, and ballot boards: the federalization of election administration.
    • United States
    • Case Western Reserve Law Review Vol. 62 No. 4, June 2012
    • June 22, 2012 well as Harper v. Virginia State Bd. of Elections, 383 U.S. 663 (1966), Gray v. Sanders, 372 U.S. 368 (1963) and Moore v. Ogilvie, 394 U.S. 814 (67) 128 S. Ct. 1610 (2008). (68) See Chad Flanders, Please Don't Cite This Case! The Precedential Value of Bush v. Gore, 116 YALE L.J. POCKET P......
  • Vote-dilution analysis in Bush v. Gore.
    • United States
    • St. Thomas Law Review Vol. 23 No. 3, April 2011
    • April 1, 2011
    ...that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy." Id. at 111. (14.) 394 U.S. 814 (15.) Bush II, 531 U.S. at 107 (quoting Moore, 394 U.S. at 819). (16.) See Gore v. Harris (Harris IV), 773 So. 2d 524, 526 (Fla. 2000) (per curi......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT