Raza Unida Party v. Bullock, No. SA-72-CA-158

CourtUnited States District Courts. 5th Circuit. Western District of Texas
Writing for the CourtTHORNBERRY, Circuit , and SUTTLE and WOOD
PartiesRAZA UNIDA PARTY et al. v. Bob BULLOCK, Secretary of State of Texas. AMERICAN PARTY OF TEXAS et al. v. Bob BULLOCK. Laurel DUNN et al. v. Bob BULLOCK et al. TEXAS NEW PARTY and Socialist Workers Party et al. v. Preston SMITH, Governor of Texas, and Bob Bullock.
Decision Date15 September 1972
Docket NumberNo. SA-72-CA-158,W-72-CA-37 and CA-72-H-990.,MO-72-CA-50

349 F. Supp. 1272

RAZA UNIDA PARTY et al.
v.
Bob BULLOCK, Secretary of State of Texas.

AMERICAN PARTY OF TEXAS et al.
v.
Bob BULLOCK.

Laurel DUNN et al.
v.
Bob BULLOCK et al.
TEXAS NEW PARTY and Socialist Workers Party et al.
v.
Preston SMITH, Governor of Texas, and Bob Bullock.

Nos. SA-72-CA-158, MO-72-CA-50, W-72-CA-37 and CA-72-H-990.

United States District Court, W. D. Texas, San Antonio Division.

September 15, 1972.


349 F. Supp. 1273
COPYRIGHT MATERIAL OMITTED
349 F. Supp. 1274
Jesse Gamez and Pat Maloney, San Antonio, Tex., for Raza Unida Party, plaintiff

Gloria T. Svanas, Odessa, Tex., for American Party of Texas, plaintiff.

Laurel N. Dunn, Waco, Tex., for Laurel N. Dunn and others, plaintiffs.

Stuart M. Nelkin and Edward Mallett, Houston, Tex., for Socialist Workers Party and Texas New Party, plaintiffs.

Mario Obledo and Alfred H. Sigman, Mexican American Legal Defense and Educational Fund, San Francisco, Cal., amicus curiae for Raza Unida Party.

Pat Bailey, Asst. Atty. Gen. of Tex., Austin, Tex., for defendants.

Before THORNBERRY, Circuit Judge, and SUTTLE and WOOD, District Judges.

MEMORANDUM OPINION

SUTTLE, District Judge.

The various plaintiffs, comprised of minor political parties, their candidates for public office, qualified voters wishing to vote for candidates of these political parties, and individuals desiring to run for public office as independent candidates, bring class actions seeking to have this Court declare invalid certain provisions of the Texas Election Code,1 and related Texas election laws. They also seek to enjoin the Texas Secretary of State from enforcing the challenged enactments. The statutes involved are all statewide in their application, and their constitutionality is questioned on the basis that they violate the First and Fourteenth Amendments to the

349 F. Supp. 1275
United States Constitution by infringing on the right of association, free speech, equal protection and due process. The plaintiffs seek declaratory and injunctive relief under 28 U.S.C. § 1343 (3), (4); § 2281; and 42 U.S.C. § 1971, § 1981, and § 1983. It is undisputed that the necessary jurisdictional requirements pursuant to 28 U.S.C. § 2281 have been met to require the convening of a three-judge court to determine the issues.2

The District Court granted an Order restraining the Secretary of State from refusing to accept any signatures gathered on nominating petitions by the Raza Unida and American Parties between June 30, 1972 and September 1, 1972. The validity of any signatures obtained during this period was conditioned upon the determination on the merits by this three-judge Court. While the individual cases involved herein do not raise identical issues, the general nature of their challenges against the Texas Election laws are similar, and by Order of July 28, 1972, the cases were consolidated for hearing and determination before this three-judge Court.

Texas affords four alternative methods of nominating candidates to the ballot for a general election. First, candidates of parties whose gubernatorial candidate polled more than 200,000 votes in the last general election may be nominated by primary election only.3 Second, candidates of parties whose candidate polled less than 200,000 votes, but more than 2% of the total vote cast for governor, may be nominated by primary election or by nominating convention.4 Third, candidates of parties whose candidates polled less than 2% of the total gubernatorial vote in the last general election, and parties who did not have a nominee for governor in the last general election, may be nominated by convention only, or by fulfilling additional requirements set out in article 13.45(2) of the Texas Election Code. Fourth, nonpartisan and independent candidates' names may be printed on the ballot after fulfilling the qualifications set out in article 13.50 of the Texas Election Code.

Plaintiffs Raza Unida Party, the American Party of Texas, the Socialist Workers Party, and the Texas New Party all fall into the third category. Therefore, the thrust of these plaintiffs' attack goes to the constitutionality of article 13.45(2). The other plaintiffs represented by Laurel N. Dunn are independent candidates who challenge the constitutionality of article 13.50. Several of the candidates individually challenge the filing requirements of article 13.47a; the age and residency requirements of article 1.05 and Article IV, §§ 4 & 16 of the Texas Constitution, Vernon's Ann.St.; the loyalty oath required by article 6.02; the prohibition in article 13.09(b) against write-in candidates; the "anti-raiding" statute, article 13.11a; and the uniform primary test required by article 13.11. Finally, the American Party of Texas seeks to have this Court declare unconstitutional the McKool-Stroud Primary Financing Law of 1972.5

This is another one of those cases where we as Judges are expected to don the "awesome mantle of omnipotence and unerring clairvoyance" to determine if Texas legislation operates to unconstitutionally burden the rights of voters, political parties, and their candidates.6 While the Supreme Court of the United States has delineated on the extreme end of the spectrum those combinations of restrictions which unconstitutionally impede the election process,7

349 F. Supp. 1276
and those on the other end which do not,8 this case presents a new combination which falls squarely in the middle. Because we believe that Courts should exercise restraint in overturning State laws unless clearly unconstitutional, we find that the totality of the Texas Election Code serves a compelling state interest and does not operate to suffocate the election process. Accordingly, we deny all relief requested by plaintiffs

I.

Defendants move to dismiss the complaints in Raza Unida Party v. Bullock and Socialist Workers Party v. Bullock wherein they challenge art. 13.45 (2) of the Texas Election Code. Defendants argue that plaintiffs in the two suits lack standing, and that their cases are moot, because, after their suits were filed, the Texas Secretary of State on August 8, 1972 certified that Raza Unida Party and the Socialist Workers Party had complied with the provisions of art. 13.45(2) and should be placed on the ballot for the November general election. The plaintiffs admit that they could receive no further relief from this Court in this election year. Nevertheless, plaintiffs maintain that they are proper parties who continue to present a justiciable "case or controversy" because excessive funds were spent by them this year in order to comply with the burdensome procedures of the Texas Election Code, and they want assurance that they will not have to repeat the process in the next election year.

The issues presented by the Raza Unida Party and Socialist Workers Party suits with regard to art. 13.45(2) are the same as those presented by the other parties to this suit who have not met the requirements. Thus, the issues are preserved for this Court's determination. Nevertheless, the Court finds that these two parties now lack the requisite "personal stake in the outcome" necessary to preserve jurisdiction in this Court.9 Accordingly, defendant's Motions to Dismiss Raza Unida Party and the Socialist Workers Party are granted. This dismissal is limited to those issues presented with regard to the party obtaining a place on the ballot pursuant to art. 13.45(2), and in no way precludes individual candidates' challenges to other provisions of the Texas Election Code.

II.

Since Yick Wo v. Hopkins,10 the "political franchise of voting" has been considered a fundamental Constitutional right. The states, of course, are empowered to pass laws regulating the selection of electors by Art. II, § 1 of the United States Constitution. However, any notion that Art. II, § 1 gives the states power to impose burdens on the right to vote, where such burdens are expressly prohibited in other Constitutional provisions, has been rejected by the United States Supreme Court in Williams v. Rhodes.11 In striking down as too burdensome Ohio election laws regulating the placement of minority parties on the ballot, the Court in Rhodes discussed the Constitutional provisions protecting voting rights:

In determining whether or not a state law violates the Equal Protection Clause, we must consider the facts and circumstances behind the law, the interests which the State claims to be protecting, and the interests of those who are disadvantaged by the classification. In the present situation the state laws place burdens on two different,
349 F. Supp. 1277
although overlapping, kinds of rights—the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively. Both of these rights, of course, rank among our most precious freedoms. We have repeatedly held that freedom of association is protected by the First Amendment. And of course this freedom protected against federal encroachment by the First Amendment is entitled under the Fourteenth Amendment to the same protection from infringement by the States. Similarly we have said the same with reference to the right to vote . . . .12

Although the respondent in this case urges that the traditional "rational basis" test13 ought to be applied in determining whether the Texas election laws violate equal protection, the Supreme Court consistently has applied the "compelling state interest" test14 in voting rights cases to determine whether the state's Constitutional power to regulate justifies limiting first amendment freedoms.15 Primaries as well as general elections have been subjected to this exacting scrutiny.16

In Bullock v. Carter, supra, the Court for the first time applied the compelling state interest test to restrictions on candidacy.17 The Court stated that to determine which standard to use when reviewing state regulations...

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8 practice notes
  • Tripp v. Scholz, No. 16-3469.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • October 6, 2017
    ...interest to insure that participants in one party's nominating process do not participate in another's." Raza Unida Party v. Bullock , 349 F.Supp. 1272, 1280 (W.D. Tex. 1972), aff'd in part, vacated in part sub nom. Am. Party of Tex. , 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974). The......
  • Wurtzel v. Falcey
    • United States
    • United States State Supreme Court (New Jersey)
    • March 1, 1976
    ...2 (Representatives, 25 years) and § 3 (Senators, 30 years). See Manson v. Edwards, supra, 482 F.2d at 1078; Raza Unida Party v. Bullock, 349 F.Supp. 1272, 1283 (W.D.Texas 1972), aff'd in part, vacated in part Sub nom. American Party of Texas v. White, 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d......
  • American Party of Texas v. White Hainsworth v. White 8212 887, 72 8212 942, Nos. 72
    • United States
    • United States Supreme Court
    • March 26, 1974
    ...S.Ct. 854, 35 L.Ed.2d 36; O'Brien v. Skinner, 414 U.S. 524, 94 S.Ct. 740, 38 L.Ed.2d 702. Pp. 794—795. No. 72—942, affirmed; No. 72—887, 349 F.Supp. 1272, affirmed in part, vacated and remanded in part. Gloria T. Svanas, Odessa, Tex., for appellants in No. 72—887. Robert W. Hainsworth, Hous......
  • In re Op. of the Justices, Request of the Senate, No. 2009–251.
    • United States
    • Supreme Court of New Hampshire
    • May 6, 2009
    ...Mitchell, 400 U.S. at 294, 91 S.Ct. 260 (Stewart, J., concurring in part and dissenting in part); see Raza Unida Party v. Bullock, 349 F.Supp. 1272, 1283 (W.D.Tex.1972), aff'd in part and vacated in part on other grounds sub nom. American Party of Texas v. White, 415 U.S. 767, 94 S.Ct. 1296......
  • Request a trial to view additional results
8 cases
  • Tripp v. Scholz, No. 16-3469.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • October 6, 2017
    ...interest to insure that participants in one party's nominating process do not participate in another's." Raza Unida Party v. Bullock , 349 F.Supp. 1272, 1280 (W.D. Tex. 1972), aff'd in part, vacated in part sub nom. Am. Party of Tex. , 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974). The......
  • Wurtzel v. Falcey
    • United States
    • United States State Supreme Court (New Jersey)
    • March 1, 1976
    ...2 (Representatives, 25 years) and § 3 (Senators, 30 years). See Manson v. Edwards, supra, 482 F.2d at 1078; Raza Unida Party v. Bullock, 349 F.Supp. 1272, 1283 (W.D.Texas 1972), aff'd in part, vacated in part Sub nom. American Party of Texas v. White, 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d......
  • American Party of Texas v. White Hainsworth v. White 8212 887, 72 8212 942, Nos. 72
    • United States
    • United States Supreme Court
    • March 26, 1974
    ...S.Ct. 854, 35 L.Ed.2d 36; O'Brien v. Skinner, 414 U.S. 524, 94 S.Ct. 740, 38 L.Ed.2d 702. Pp. 794—795. No. 72—942, affirmed; No. 72—887, 349 F.Supp. 1272, affirmed in part, vacated and remanded in part. Gloria T. Svanas, Odessa, Tex., for appellants in No. 72—887. Robert W. Hainsworth, Hous......
  • In re Op. of the Justices, Request of the Senate, No. 2009–251.
    • United States
    • Supreme Court of New Hampshire
    • May 6, 2009
    ...Mitchell, 400 U.S. at 294, 91 S.Ct. 260 (Stewart, J., concurring in part and dissenting in part); see Raza Unida Party v. Bullock, 349 F.Supp. 1272, 1283 (W.D.Tex.1972), aff'd in part and vacated in part on other grounds sub nom. American Party of Texas v. White, 415 U.S. 767, 94 S.Ct. 1296......
  • Request a trial to view additional results

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