Socialist Labor Party v. Rhodes

Decision Date29 August 1968
Docket Number68-248.,Civ. A. No. 68-224
Citation290 F. Supp. 983
PartiesSOCIALIST LABOR PARTY et al., Plaintiffs, v. James A. RHODES et al., Defendants. Glen A. WILLIAMS et al., Plaintiffs, v. James A. RHODES et al., Defendants.
CourtU.S. District Court — Southern District of Ohio


William Saxbe, Atty. Gen., and Charles S. Lopeman, Chief Counsel, for the State of Ohio.

Dunbar, Kienzle & Murphey, and David S. Young, Columbus, Ohio, for Williams and others.

Jerry Gordon, and Benjamin Sheerer, Cleveland, Ohio, for the Socialist Labor Party and others.

Before CECIL, Senior Circuit Judge, WEINMAN, Chief District Judge, and KINNEARY, District Judge.



We have before us two actions recently filed in the United States District Court for the Southern District of Ohio, Eastern Division. Since common questions of law are involved, we consolidate these two cases for decision. This three-judge court, recently appointed, was put under compulsion to arrive at an early decision because of the limit of time between now and the printing of the ballots by the Ohio Secretary of State and the necessity for either party to have the right to appeal this decision to the United States Supreme Court.

The questions for determination involve the construction of the election laws of the State of Ohio and present cases of first impression, not only in Ohio but in all federal courts throughout this country.

The defendants are sued in their official representative capacities as the Governor, the Secretary of State and the Attorney General of Ohio and are common to both actions.

The Court's jurisdiction in both actions is properly asserted under Title 42, United States Code, Sections 1981, 1983 and 1988; Title 28, United States Code, Section 1343, Subsection (3); and Title 28, United States Code, Sections 2201-02.

A three-judge court was convened in each case, according to law. By authority of 28 U.S.C., Section 2284, Honorable Paul C. Weick, Chief Judge of the Sixth Circuit, appointed this Court in the Socialist case on July 12, 1968, and in the Wallace case on August 12, 1968. We will refer to these cases as the Socialist case and the Wallace case, respectively. The Socialist case was filed on July 2nd and the Wallace case on July 29, 1968. Both cases were advanced on the docket for hearing, the Socialist case to August 12th and the Wallace case to August 19th, the earliest possible date that it could be assigned.

The cases were submitted to the Court on the complaints, answers, motions for summary judgment, each of which was supported by affidavits, and oral arguments. The ultimate purpose of both actions is to obtain an order requiring the Secretary of State, the chief elections officer of Ohio, to place the names of the respective parties or candidates on the Ohio ballot for the November general election.

We were asked to examine, in a brief period of time, the maze of election laws of the State of Ohio and to determine that some of them are unconstitutional. If we do so find, we are asked to proceed to use extreme broad equitable powers usurping the duties of the legislature of the State of Ohio.

It is the contention of the respective plaintiffs that the Ohio Election Laws (Title 35, Ohio Revised Code) are such that it is virtually impossible for a new political party to gain recognition as a political party and correspondingly a position on the Ohio ballot. This is due primarily to the stringent requirements of Section 3517.011 of the Revised Code of Ohio. Under the Election Laws, as now in force, there is no provision for persons to qualify as independent candidates for president and vice-president of the United States. Neither do the voters have any opportunity to write in the name of any person for any office at the general election, unless there is no regularly nominated candidate for that office. Further, if there is compliance with Section 3517.01 other provisions of the Election Laws, Sections 3513.11 and 3513.12, which pertain to the election of delegates to state and national conventions and the appointment of presidential electors, must be complied with in order to get a party name on the ballot. These obstacles in obtaining a position on the ballot which a presidential candidate encounters are not denied by the defendants.

In a second cause of action in the Socialist case, the plaintiffs seek an order requiring the Secretary of State to provide a space on the ballot for "write-in" votes. The election laws of Ohio provide that, in general elections, "no blank spaces shall be provided on such ballot wherein an elector may write in the name of a person for whom he desires to vote," except for offices for which no candidates have been nominated. Sections 3505.03 and 3505.23, Ohio Revised Code. However, in primary elections, in which only qualified political parties may participate, electors may write in candidates whose names do not otherwise appear on the official ballot. Section 3513.14., O.R.C.

In response to plaintiffs' claim, defendants argue that only those candidates who have demonstrated a hope of succeeding in the general election have a right to have their names on the ballot, and that third-party and independent candidates have an opportunity to demonstrate their support by seeking write-in votes in the primary election. This argument completely ignores the fact that, if successful, such person is the candidate of the party whose primary he has won, and not a third party or independent candidate as he desires. Ohio greatly limits the choice of the voters in November by effectively limiting the names which appear on the ballot to the names of those candidates who are successful in the primary elections of qualified political parties.

The very foundation and bulwark of our democracy is the right of our citizens to participate in the selection of our governing officials. Americans treasure the right to express their political preferences by means of the ballot. "No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live." Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 535, 11 L.Ed.2d 481. The Supreme Court of the United States has consistently held that qualified citizens have a constitutionally protected right to vote and have their votes counted. Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274; United States v. Mosley, 238 U.S. 383, 35 S.Ct. 904, 59 L.Ed. 1355; Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663; Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L. Ed.2d 506; United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368.

"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." Reynolds v. Sims, supra, 377 U.S. at page 555, 84 S.Ct. at page 1378. The electoral process is a matter of a majority of qualified voters selecting a candidate to fill a political office and a state cannot arbitrarily impair the freedom of choice which a qualified voter may exercise on election day. If a citizen is entitled to vote and have his vote count, he is entitled to vote for any candidate of his choice, subject to reasonable conditions and qualifications imposed by the State. Political participation is not limited to those who adhere to the tenets of one of the major political parties, but includes all citizens who wish to publicly demonstrate support for a certain candidate or political theory.

"Although a large majority of our people hold allegiance to the two major political parties in this nation and believe that free government is most efficiently perpetuated through a two-party system, nevertheless there are millions of independent voters who should always be given an equal right of suffrage with party members. There should be no discrimination because of a disagreement as to political principles or policies, as long as those who disagree are loyal and obedient to the Constitution." State ex rel. Beck v. Hummel, 150 Ohio St. 127, 139, 80 N.E.2d 899, 906.

As we have previously indicated, one need not have a good chance of winning to be a candidate for office. Just as the Constitution protects the right of individuals to express themselves freely, so does the Constitution permit these same individuals to seek support at election time. The right to vote is the right to vote freely and without unreasonable prohibitions as to the candidate of ones' choice.

Voters are often not content to vote for one of the candidates nominated by the two major parties. A write-in ballot permits a voter to effectively exercise his individual constitutionally protected franchise. The use of write-in ballots does not and should not be dependent on the candidate's chance of success. The denial of this unfettered freedom of choice is a denial of the equal protection of the laws as guaranteed by the Fourteenth Amendment. Voters cannot be denied the right to express themselves politically through elections, merely because state officials fear that such voters profess ideas and philosophies contrary to the ones generally prevailing among the electorate. Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965).

The defendants have offered no satisfactory explanation for the prohibition of write-in ballots and their argument is untenable. Furthermore, "States may not casually deprive a class of individuals of the vote because of some remote administrative benefit to the State." Carrington v. Rash, supra, at page 96, 85 S.Ct. at page 780. A blanket prohibition against the use of write-in ballots denies the qualified electors of Ohio the right to freely participate in the electoral process as guaranteed by the Constitution and violates the "equal protection" clause of the Fourteenth Amendment. Therefore, Sections 3505.03 and...

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  • Canaan v. Abdelnour
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    ...The use of write-in ballots does not and should not [ ] depend[ ] on the candidate's chance of success." (Socialist Labor Party v. Rhodes (S.D.Ohio 1968) 290 F.Supp. 983, 987, affd. in part, mod. in part sub. nom., Williams v. Rhodes, supra, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24, emphasis ......
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