Rainbow Coalition of Oklahoma v. Oklahoma State Election Bd., 87-2360

• Decision Date: 18 April 1988
• Docket Number: No. 87-2360,87-2360
• Citation: 844 F.2d 740
• Parties: RAINBOW COALITION OF OKLAHOMA; Floyd Turner, Chairman of the Rainbow Coalition of Oklahoma, Plaintiffs, and Libertarian Party of Oklahoma; Charles Burris, Chairman of the Libertarian Party of Oklahoma; Populist Party of Oklahoma, Inc., an Oklahoma non-profit corporation; and Bill Chandler, Chairman of the Populist Party of Oklahoma, Plaintiffs-Appellants, v. The OKLAHOMA STATE ELECTION BOARD; Betty McElderry, Chairman of the Oklahoma State Election Board; Angela Ables, Vice Chairman of the Oklahoma State Election Board; Mona Lambird, member of the Oklahoma State Election Board; and Lee Slater, Secretary of the Oklahoma State Election Board, Defendants- Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 740

844 F.2d 740

RAINBOW COALITION OF OKLAHOMA; Floyd Turner, Chairman of the Rainbow Coalition of Oklahoma, Plaintiffs and Libertarian Party of Oklahoma; Charles Burris, Chairman of the Libertarian Party of Oklahoma; Populist Party of Oklahoma, Inc., an Oklahoma non-profit corporation; and Bill Chandler, Chairman of the Populist Party of Oklahoma Plaintiffs-Appellants, v. The OKLAHOMA STATE ELECTION BOARD; Betty McElderry Chairman of the Oklahoma State Election Board; Angela Ables, Vice Chairman of the Oklahoma State Election Board Mona Lambird, member of the Oklahoma State Election Board; and Lee Slater, Secretary of the Oklahoma State Election Board, Defendants- Appellees.

No. 87-2360.

United States Court of Appeals, Tenth Circuit.

April 18, 1988.

Thomas L. Spencer, Asst. Atty. Gen. (Robert H. Henry, Atty. Gen. of Oklahoma, with him on the briefs), Oklahoma City, Okl., for defendants-appellees.

James C. Linger, of Butler & Linger, Tulsa, Okl. (Loren L. Baker, Oklahoma City, Okl., with him on the briefs), for plaintiffs-appellants.

Before SEYMOUR and McWILLIAMS, Circuit Judges, SAFFELS ^*, District Judge.

SEYMOUR, Circuit Judge.

The Rainbow Coalition, Libertarian, and Populist Parties of Oklahoma brought this action against the Oklahoma State Election Board pursuant to 42 U.S.C. Sec. 1983 (1982), asserting that Oklahoma's ballot access and voter registration laws violate their rights under the First and Fourteenth Amendments. Both sides filed motions for summary judgment. The district court ruled in favor of the Board and denied plaintiffs' requested declaratory and injunctive relief. Plaintiffs Libertarian and Populist Parties appeal and we affirm. ¹

Plaintiffs contend that they are denied equal protection under the Oklahoma statute governing the process by which a minority party becomes recognized by the state and thus able to place party candidates on the ballot. Plaintiffs also assert that the deadline for filing petitions seeking recognized party status is too far removed from the primary and general elections to pass constitutional muster, particularly given the high signature requirement for becoming a recognized party. Finally, plaintiffs argue that the election laws unconstitutionally preclude voters from registering as members of unrecognized political parties.

I.

Our consideration of these claims begins with a description of the statutes at issue and their function in the context of the Oklahoma Election Code. The Oklahoma scheme distinguishes between those political parties that are recognized by the state and those that are not. ² Only recognized parties may identify their candidates on the ballot by party label, and only members of recognized parties may designate their party affiliation when they register to vote. Members of nonrecognized parties are shown on the voter registration rolls as Independents.

A political body desiring to obtain recognized party status must file petitions with the Board "bearing the signatures of registered voters equal to at least five percent (5%) of the total votes cast in the last General Election either for Governor or for electors for President and Vice President." Okla.Stat. tit. 26, Sec. 1-108 (1981 & Supp.1987). ³ The party has one year to circulate the petitions, and must file them no later than May 31 of an even-numbered year. Id. A party loses recognized status if its nominee for Governor or its nominees for electors for President and Vice President fail to receive at least ten percent of the total votes cast in any general election. Id. Sec. 1-109. When a party loses recognized status, the party affiliation of those voters registered as members of that party is automatically changed to Independent. Id. Sec. 1-110.

Oklahoma holds general elections every two years in the even-numbered years. The gubernatorial general election is held every four years, in the even-numbered year on which the presidental election is not held. The gubernatorial and presidential general elections thus alternate every two years. As a result, the number of signatures required for recognized status in a presidential election is based on the gubernatorial turnout, while the signatures required for a gubernatorial election is determined by the presidential turnout.

Since 1945, only two minority parties have successfully petitioned to gain recognized party status: the American Party in 1968, and the Libertarian Party in 1980. ⁴ No third party has successfully petitioned to gain recognized party status in Oklahoma for a gubernatorial election year since 1974 when the petition signature requirement was changed from 5,000 signatures to five percent of the votes cast in the preceding general election. See Okla.Stat. tit. 26, Sec. 229 (1971), repealed by 1974 Okla.Sess.Laws Ch. 153, Sec. 17-114.

II.

Plaintiffs make a broad challenge to Okla.Stat. tit. 26, Sec. 1-108. As described above, that statute requires a party seeking recognized status to obtain signatures equalling at least five percent of the number of votes cast in the last general election. Because the gubernatorial and presidential elections alternate every two years, the number of signatures required in a gubernatorial year is set by the preceding presidential general election, while the number in a presidential election year is established by the preceding gubernatorial election. It is undisputed that voter turnout has been consistently higher for presidential general elections than for gubernatorial general elections. Accordingly, more signatures are needed to satisfy the five percent requirement in a gubernatorial year than in a presidential year. Currently, it would take 45,497 signatures to meet the five percent requirement for forming a recognized political party in 1988. It would have taken 62,784 signatures in 1986. While plaintiffs do not contend that a five percent signature requirement is per se unconstitutional, they do assert that the disparity is constitutionally impermissible.

Plaintiffs begin their argument on this point by contending that we must apply strict scrutiny to state statutes restricting the ballot access of minority parties. We are unable to agree. Courts and commentators alike have pointed out that the Supreme Court has not been consistent in articulating the standard by which we are to evaluate the constitutionality of such statutes. See, e.g., Hall v. Simcox, 766 F.2d 1171, 1173 (7th Cir.), cert. denied, 474 U.S. 1006, 106 S.Ct. 528, 88 L.Ed.2d 459 (1985); Dart v. Brown, 717 F.2d 1491, 1501-04 (5th Cir.1983), cert. denied, 469 U.S. 825, 105 S.Ct. 105, 83 L.Ed.2d 49 (1984); Arutunoff v. Oklahoma State Election Bd., 687 F.2d 1375, 1379 (10th Cir.1982), cert. denied, 461 U.S. 913, 103 S.Ct. 1892, 77 L.Ed.2d 282 (1983); L. Tribe, American Constitutional Law Sec. 13-20, at 1107-10 (2d ed. 1988). In Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979), the Court, in evaluating an equal protection challenge to a ballot access restriction, did require the state to establish a compelling interest and to use the least drastic means to achieve its goal. However, other and more recent Supreme Court cases have neither demanded a compelling state interest nor insisted that the state demonstrate it has achieved this end by the least restrictive means available. See Munro v. Socialist Workers Party, --- U.S. ----, 107 S.Ct. 533, 538-39, 93 L.Ed.2d 499 (1986); ⁵ Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983); see generally L. Tribe, Sec. 13-20, at 1107-10.

In two recent ballot access cases in this circuit, Populist Party v. Herschler, 746 F.2d 656, 659 (10th Cir.1984), and Blomquist v. Thomson, 739 F.2d 525, 527 (10th Cir.1984), we applied the analytical process set out by the Court in Anderson, 460 U.S. at 789, 103 S.Ct. at 1570, 75 L.Ed.2d 547 (1983), under which a court

"must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional."

Accordingly, this balancing test governs our determination here.

State statutes that restrict "the access of political parties to the ballot impinge upon the rights of individuals to associate for political purposes, as well as the rights of qualified voters to cast their votes effectively." Munro, 107 S.Ct. at 536. These important associational rights are nonetheless subject to state limitation. The Supreme Court has held that a state has an important interest "in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization's candidate on the ballot--the interest, if no other, in avoiding confusion, deception, and even frustration of the democratic process at the general election." Id. at 537 (quoting Jenness v. Fortson, 403 U.S. 431, 442, 91 S.Ct. 1970, 1976, 29 L.Ed.2d 554 (1971)).

The district court in this case recognized the importance of the associational rights involved and the importance of the state's need to require minority parties to demonstrate a modicum of support. The court pointed out that both the Supreme Court and this circuit have upheld election laws restricting ballot access to candidates who file petitions containing signatures equal to five percent of the voters in the last general election, citing Jenness v. Fortson, 403 U.S. 431, 438, 91 S.Ct. 1970, 1974, 29 L.Ed.2d 554 (1971), a...