Moore v. Ogilvie, No. 620

CourtUnited States Supreme Court
Writing for the CourtSTEWART
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
Decision Date05 May 1969
Docket NumberNo. 620

394 U.S. 814
89 S.Ct. 1493
23 L.Ed.2d 1
James L. MOORE et al., Appellants,

v.

Richard B. OGILVIE, etc., et al.

No. 620.
Argued March 27, 1969.
Decided May 5, 1969.

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

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

Page 815

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

Page 816

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

Page 817

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

Page 818

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...

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522 practice notes
  • Buckley v. Valeo, No. 75-1061
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 29, 1975
    ...in a few, but heavily populated, states might be unable to qualify for public funding. Plaintiffs argue strenuously that Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969), requires that we invalidate this provision of the primary financing scheme. We In Moore, the Supreme C......
  • Lopez v. White Plains Housing Authority, No. 72 Civ. 223.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • October 4, 1972
    ...However, the question presented by the complaint is not one "capable of repetition, yet evading review." Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1 (1969). Should the Authority refuse public housing to another applicant solely on the basis of non-citize......
  • CBS, Inc. v. F. C. C., Nos. 79-2403
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • November 3, 1980
    ...608 (1979), quoting Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975). 134 See, e. g., Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 135 528 F.2d 124 (7th Cir. 1975). 136 Storer v. Brown, 415 U.S. 724, 737 n.8, 94 S.Ct. 1274, 1282, 39 L.Ed.2d 7......
  • Clark v. Valeo, No. 76-1825
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 6, 1977
    ...to me unlikely that someone may remain a candidate long enough to secure judicial redress of such grievances. But see Moore v. Oglivie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 8 See text supra at note 4. 9 The gist of the majority's explication of its holding concerning Clark is as follow......
  • Request a trial to view additional results
519 cases
  • Buckley v. Valeo, No. 75-1061
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 29, 1975
    ...in a few, but heavily populated, states might be unable to qualify for public funding. Plaintiffs argue strenuously that Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969), requires that we invalidate this provision of the primary financing scheme. We In Moore, the Supreme C......
  • Lopez v. White Plains Housing Authority, No. 72 Civ. 223.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • October 4, 1972
    ...plaintiff. However, the question presented by the complaint is not one "capable of repetition, yet evading review." Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1 (1969). Should the Authority refuse public housing to another applicant solely on the basis of non-citiz......
  • CBS, Inc. v. F. C. C., Nos. 79-2403
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • November 3, 1980
    ...608 (1979), quoting Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975). 134 See, e. g., Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 135 528 F.2d 124 (7th Cir. 1975). 136 Storer v. Brown, 415 U.S. 724, 737 n.8, 94 S.Ct. 1274, 1282, 39 L.Ed.2d 7......
  • Clark v. Valeo, No. 76-1825
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 6, 1977
    ...to me unlikely that someone may remain a candidate long enough to secure judicial redress of such grievances. But see Moore v. Oglivie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 8 See text supra at note 4. 9 The gist of the majority's explication of its holding concerning Clark is as follow......
  • Request a trial to view additional results
2 books & journal articles
  • The Supreme Court of the United States, 1968-1969
    • United States
    • Political Research Quarterly Nbr. 23-1, March 1970
    • March 1, 1970
    ...the exercise of their political rights in violation of the Equal Protection Clause of the Fourteenth Amendment. Moore v. Ogilvie, 394 U.S. 814; 89 S. 1493. (Vote: 7-2, Stewart and Harlan dissenting.) This case overruled Mac- Dougall v. Green, 335 U.S. 281, 1948. An order of the United State......
  • 'A MYSTIFYING AND DISTORTING FACTOR': THE ELECTORAL COLLEGE AND AMERICAN DEMOCRACY.
    • United States
    • Michigan Law Review Vol. 120 Nbr. 6, April 2022
    • April 1, 2022
    ...148 U.S. 503, 519 (1893). (85.) U.S. Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452, 469 (1978). (86.) See Moore v. Ogilvie, 394 U.S. 814, 819 (1969) ("The idea that one group can be granted greater voting strength than another is hostile to the one man, one vote basis of our representa......

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