Socialist Workers Party v. Welch

Decision Date27 October 1971
Docket NumberCiv. A. No. 71-H-462.
Citation334 F. Supp. 179
PartiesThe SOCIALIST WORKERS PARTY et al. v. Mayor Louie WELCH et al.
CourtU.S. District Court — Southern District of Texas

Stuart M. Nelkin and David H. Berg, Houston, Tex., for plaintiffs.

William A. Olson, City Atty., Joseph Rollins, Senior Asst. City Atty., Houston, Tex., for defendants.

MEMORANDUM AND ORDER

BUE, District Judge.

The Socialist Workers Party of Houston and four affiliates of that party bring this suit for relief from and redress of the deprivation of federal Constitutional rights, particularly those of due process and equal protection guaranteed by the Fourteenth Amendment. Plaintiffs' action arises under § 1 of the 1871 Civil Rights Act, 42 U.S.C. § 1983, this Court being asked to render declaratory relief pursuant to 28 U.S.C. § 2201 and for preliminary and permanent injunctive relief. Deborah Leonard is a member of the Socialist Workers Party seeking to file as a candidate for mayor; the three other named plaintiffs, Mareen Jasin, Paul McKnight and Jeanette Tracy, are also members of the Socialist Workers Party seeking to file as candidates for positions on the City Council. Plaintiffs have complied with all filing requirements provided by the City Charter except for the payment of filing fees, art. 5, § 6, and the ownership of real property in the city for at least two years prior to election, art. 6, § 1. The required registration fee for mayoral candidates is $1,250; the fee for councilman candidates is $500.

Plaintiffs urge that their Fourteenth Amendment rights have been violated due to the requirements of a substantial registration fee and real property ownership as prerequisites to candidacy for city office. These criteria, it is said, operate to exclude from candidacy all persons but those of considerable affluence. Defendants would show that, while the restrictive provisions of the City Charter might operate to the detriment of poor persons seeking candidacy, a compelling governmental interest justifies the requirement. Without regulation of the ballot, it is asserted, the electoral process would be reduced to a state of hopeless confusion.

The right to vote was long ago defined as a fundamental political right, Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). And the right to exercise the franchise includes the right to cast one's vote effectively, Carter v. Dies, 321 F.Supp. 1358, 1361 (N.D.Tex.1970), whether that effectiveness be measured quantitatively, Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1954) (apportionment) or qualitatively, Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed. 2d 24 (1968) (right to choose one's candidate). It is axiomatic under recent Supreme Court decisions that the fundamental interests involved in voting rights are to be protected from encumbrances other than those necessary to serve a compelling governmental interest, Kramer v. Union Free School District, 395 U.S. 621, 628, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Williams v. Rhodes, 393 U.S. 23, 31, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968); Harper v. Virginia State Board, 383 U.S. 663, 670, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966).

Analysis of the most recent case law emanating from the Supreme Court evidences the view that ideas of what constitutes equal treatment under the equal protection clause of the Constitution do change. Mr. Justice Douglas voiced this view when speaking for the Court in Harper v. Virginia State Board, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966), a case in which the poll tax was struck down. Similarly, the requirement of property ownership and the payment of a filing fee have been supported in the past to a significant degree because such requirements comported with state policies for the collection of revenue and were consistent with the belief that voters satisfying such qualifications would be those most interested in furthering a state's or a community's welfare when they vote, 383 U.S. at 677, 86 S.Ct. 1079 (dissent of Black, J.). Presumably, the elimination of such requirements on constitutional grounds in view of this recent modification in philosophy and application of the equal protection clause is not meant to diminish or alter that degree of interest or genuine concern exhibited by the local citizenry in voting as they see fit for the welfare of the community. Indeed, the opposite would be true, as the striking down of such requirements is theoretically meant to broaden participation in elections of the voting populace with consequent improved representative local government.

The same rationale would seem to apply when the requirements for candidates for office are considered. Civic responsibility is best demonstrated when, out of those who possess a significant stake and interest in the community and in the outcome of an election, are selected those names which ultimately appear on the ballot as candidates for city office. Although it is not for this Court to attempt to assess the full intentions of these plaintiffs in terms of reflecting bona fide civic responsibility, certain of their representations and admissions in sworn testimony in this case do serve to cast some further light on the multiple problems faced by a city government in conducting a municipal election which cause it to seek some practicable and manageable way to pare down the number of candidates appearing on the ballot, thereby insuring that those participating as candidates in the election are serious in their intentions and possess some significant support among the voters.

All plaintiffs in this case satisfy the one year residency requirement recently passed by the state legislature in August, 1971. Twenty-five or thirty persons would constitute the vast majority of the members of the Socialist Workers Party in Harris County, Texas. (Depo. of Jeanette Bliss p. 9). The candidate for mayor, age 28, ran for the United States Senate on the Socialist Workers Party ticket in Seattle, Washington in 1968, and her husband ran for mayor in Seattle with the support of the Socialist Workers Party in 1969. (Depo. of Deborah Leonard, pp. 28-30). One of the candidates for city council was a candidate for District Attorney in Philadelphia, Pennsylvania in 1969, with Socialist Workers Party backing, although she is not and has never been an attorney, a situation which she characterized as "so funny" (Depo. of Mareen Jasin, pp. 13, 14). Another candidate for city council is 22 years old and running her first political race. She joined the Socialist Workers Party in 1968 and supported the Party ticket in Cleveland before moving to Houston. (Depo. Jeanette Tracy Bliss, p. 32). The last candidate for city council is 24 years old and a chairman of the Harris County Socialist Workers Party. (Depo. of Paul McKnight, pp. 5, 11). Before coming to Houston he lived in San Francisco, California for five years during part of which time he was a student at San Francisco State College where he participated in the student strike. (Depo. of Paul McKnight, pp. 11-13). He supported the Socialist Workers Party ticket in California in the 1968 elections. (Depo. pp. 18, 19). From December 27, 1968, to January 24, 1969, he was in Cuba as a member of a delegation from the Young Socialist Alliance which was invited there by the Cuban government to celebrate the 10th anniversary of the Cuban revolution (McKnight Depo. pp. 14, 15). He would not object to the violent overthrow of the government or the engaging in violence to this end if someone else did it. (Id. p. 26). Two of the candidates testified that they would probably support Russia in a war between the United States and Russia. (Depo. of Mareen Jasin, pp. 15, 16); (Depo. of Paul McKnight, p. 26). One of the candidates would not state which country she would support in the event of such a conflict. (Depo. of Jeanette Tracy Bliss, p. 31).

The test which this Court must employ in ascertaining the merit of the claims brought forward by these plaintiffs is the compelling interest test, a more stringent inquiry than the rational basis test utilized in areas of less fundamental nature than voting rights:

Under the compelling interest standard a state must show both that it has a compelling interest which justifies its laws and that the distinctions drawn by the law are necessary to further its purpose.

The Supreme Court, 1968 Term, 83 Harv.L.Rev. 60, 93 n. 30 (1969).

Application of the compelling interest test is further necessitated in the instant case, "where lines are sought to be drawn on the basis of wealth * * *," McDonald v. Board of Election Commissioners, 394 U.S. 802, 807, 89 S.Ct. 1404, 1407, 22 L.Ed.2d 739 (1968).

I.

Plaintiffs initially asserted in their complaint that the five year residency requirement instituted under the City Charter, art. 6 § 1, restricts the right of travel between cities and states, Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), discriminates on the basis of length of residence, thus denying plaintiffs the equal protection of the law, and serves absolutely no purpose or interest save delay.

As of August 30, 1971, an amendment to the Texas Election Code art. 1.05-1, V.A.T.S. providing for a one year residency requirement for all candidates of city office and repealing all laws and parts of law in conflict thereof, has been in force. This recent enactment by the Legislature prevails over inconsistent City Charter or ordinance provisions, Vernon's Ann.St.Tex.Const. art. XI § 5. The facts in the instant case, established by deposition, show that all plaintiffs have fulfilled and satisfied the one year requirement, thus rendering any attack based upon residency moot.

II.

Second, it is urged that the requirement of real property ownership as a prerequisite to candidacy operates to exclude from candidacy all persons who are in poverty, and thus operates to create a classification of invidious discrimination...

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