Nader v. Schaffer

Decision Date14 July 1976
Docket NumberCiv. A. No. H 76-20.
Citation417 F. Supp. 837
CourtU.S. District Court — District of Connecticut
PartiesNathra NADER and Albert C. Snyder, Jr., Plaintiffs, v. Gloria SCHAFFER, Secretary of the State, State of Connecticut, et al., Defendants.

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Linda F. Donaldson, Alan B. Morrison, Washington, D. C., William H. Clendenen, Jr., New Haven, Conn., for plaintiffs Nathra Nader and Albert C. Snyder, Jr. Gilbert Lebovitz (Lebovitz, Gussak & Litman), Hartford, Conn., H. William Shure, New Haven, Conn., for Lowell P. Weicker, Jr., amicus curiae.

Barney Lapp, Daniel R. Schaefer, Carl R. Ajello and Robert T. Statchen, Asst. Attys. Gen., Hartford, Conn., for defendant Gloria R. Schaffer, Secretary of the State of Connecticut.

James A. Wade (Robinson, Robinson & Cole) Hartford, Conn., for defendant Democratic Party.

Carl Cella, North Haven, Conn., for defendant Republican Party.

Before ANDERSON, Circuit Judge, CLARIE, Chief Judge, and BLUMENFELD, District Judge.

MEMORANDUM OF DECISION

ROBERT P. ANDERSON, Circuit Judge:

Plaintiffs, Nathra Nader and Albert C. Snyder, Jr., are residents of Winchester, Connecticut. Each has registered as a voter pursuant to Conn.Gen.Stat. §§ 9-20 and 9-21. The basis for this action, brought under 42 U.S.C. § 1983, with jurisdiction based on 28 U.S.C. §§ 1343(3) and 1343(4), to redress the alleged deprivation, under color of state statute, of certain voting and associational rights guaranteed by the federal Constitution, is that plaintiffs refuse to enroll in a political party pursuant to Conn. Gen.Stat. § 9-56 or 9-59 and are, therefore, prohibited from voting in any party primary elections. Because the complaint seeks an order restraining the enforcement of Conn.Gen.Stat. § 9-431 on the grounds of its alleged unconstitutionality, and because the constitutional question raised is not "insubstantial," this three-judge court was convened. 28 U.S.C. § 2281; Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973). Plaintiffs have moved, with supporting affidavits, for summary judgment. Defendants, the Secretary of the State of Connecticut, and the Republican and Democratic Parties of Connecticut, have moved to dismiss the complaint. The motion to dismiss is granted and the motion for summary judgment is denied.

Connecticut Gen.Stat. § 9-431 provides in pertinent part:

"Eligibility to vote at primary. No person shall be permitted to vote at a primary of a party unless he is on the last-completed enrolment list of such party in the municipality or voting district, as the case may be . . .."

Plaintiffs' complaint alleges that the actions of the defendant Secretary of the State1 and her agents in enforcing § 9-431, pursuant to §§ 9-3, 9-4, 9-5, and 9-439, violate plaintiffs' rights in the following manner: (1) by denying them the right to vote in primary elections while extending this right to enrolled party members, deprives plaintiffs of their Fourteenth Amendment right to equal protection of the law; (2) by compelling them either to enroll in a political party or forego a right to vote in a primary election impermissibly forces plaintiffs to choose between a right to vote, on the one hand, and the right freely to associate for the advancement of political ideas, on the other; the latter includes the right to associate with a particular candidate regardless of the candidate's party affiliation; and (3) infringes plaintiffs' right to vote, as guaranteed by Article I, Section 2, cl. 1 and the Fourteenth and Seventeenth Amendments, by preventing plaintiffs from participating in an "integral part" — the primary elections — "of the process by which their United States Senators and Representatives are chosen."

They allege further that "primary elections . . . constitute an integral part of the process established by the State of Connecticut for selecting individuals who will represent and govern plaintiffs in federal, state and local office," and therefore request an order declaring that § 9-431 is unconstitutional insofar as it prohibits them from voting in primary elections; and enjoining the Secretary of the State from enforcing § 9-431 so as to prohibit them from so voting.2

Connecticut's Primary Election System

Connecticut law divides potential candidates for office into three categories: those of "major parties," those of "minor parties," and independents or "petitioning parties."3 The candidates of the major and minor parties are afforded spaces on the ballot for the general election; other candidates may have their names appear on the ballot by fulfilling the petition requirements of §§ 9-453a through 9-453s. Conn. Gen.Stat. § 9-379.

Initially, state or district conventions, as the case may be, of a major party "choose a candidate for nomination to each of the state or district offices" through a "challenge primary" system. Conn.Gen.Stat. § 9-382. Party candidates for municipal office, members of party town committees, and delegates to party conventions, are chosen in each municipality, according to rules prescribed by the party, either by a party caucus, a party convention, or the town committee. Conn.Gen.Stat. § 9-390. If the candidate so chosen is not opposed, he becomes the party's candidate in the general election, and no primary election is held. Conn.Gen.Stat. §§ 9-408 and 9-409. A nonendorsed candidate, however, may force a primary if he meets the three criteria specified in Conn.Gen.Stat. § 9-400, which are that he must (1) have received at least twenty percent of the votes of the delegates to the party convention present and voting on any roll call; (2) deposit with the Secretary of the State a sum of money equal to five percent of the salary of the office he seeks; and (3) file with the Secretary of the State a petition bearing signatures of a certain number of enrolled party members residing in the jurisdiction under contest, as specified by § 9-400. (For example, a challenger for a statewide office would require 5000 signatures; a challenger for a congressional district office would require 2000 signatures.) It should be noted that plaintiffs seek to participate only in this last step of the nominating process, i. e., the primary election to choose candidates for public offices; they do not seek to participate in party caucuses or conventions, or in the selection of town committee members or convention delegates.

Minor parties are required only to nominate their candidates in a manner prescribed in the party's own rules, which must be filed with the Secretary of the State. Conn.Gen.Stat. § 9-451. Candidates not nominated by either a major or minor party can get on the ballot by presenting to the Secretary of the State a petition bearing signatures equal to one percent of the votes cast for the same office at the last preceding election. Conn.Gen.Stat. § 9-453d.

Enrollment in a political party is, as plaintiffs assert, a public act of affiliation with the party, at least insofar as the voter is required by Conn.Gen.Stat. § 9-56 to appear before the registrar of voters, approximately eighteen days before the election, and execute a form giving his name, address, desired party affiliation, any affiliations or requests for affiliations (enrollments) with other parties within the previous six months and the date on which any application had been made for erasure from enrollment in any party, Conn.Gen.Stat. § 9-56; and the enrollment lists are public records, Conn.Gen.Stat. § 9-55. An unaffiliated voter may enroll in a party and participate in a primary election as late as the third Saturday before its occurrence. Conn.Gen.Stat. § 9-56. A voter who is enrolled in a party may at any time apply for erasure from that party's enrollment list, and for transfer to the enrollment list of another party, but he may not vote in any primary for six months following the date of the application for transfer. Conn. Gen.Stat. § 9-59.

DISCUSSION

Plaintiffs' principal argument4 is that participation in a primary election is an exercise of the constitutionally protected right to vote and of the constitutionally protected right to associate with others in support of a candidate. They also assert that to the latter there is a constitutionally protected correlative right not to associate, and to be free from coerced associations. They further claim a constitutionally protected right of privacy of association. Plaintiffs wish to exercise both of these claimed sets of rights, but § 9-431 limits them to one or the other; that is, in order to vote in a party's primary election, plaintiffs must enroll in the party, while on the other hand, if they maintain their stand against enrollment, they are precluded.

The fact that plaintiffs do not enroll in the Democratic or Republican Parties does not prevent them from working in support of or contributing money to their favorite candidates within these Parties or candidates in other major or minor parties; or from giving such support to independent candidates, including themselves. Moreover the plaintiffs are not prevented from signing the petitions of independents or participating in a minor party's candidate selection process as it is established by the party's rules under § 9-451. Connecticut's voting laws clearly provide avenues for supporting candidates of one's persuasion without affiliating with an established "major" political party.

Plaintiffs argue that the alternative avenues of political activity open to them under Connecticut law are ineffectual and unrealistic, since in most general elections, only the Democratic and Republican nominees have reasonable probabilities of success. While plaintiffs' contention may generally hold true for national and many statewide elections, both minor party and independent candidates may reasonably anticipate a measure of success in local elections.5 In any event, any dominant position enjoyed by the Democratic and Republican Parties is not the result of improper...

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