Socialist Workers Party v. Secretary of State of Wash.

• Decision Date: 17 July 1985
• Docket Number: No. 84-3806,84-3806
• Parties: SOCIALIST WORKERS PARTY; Leroy Watson; Louise Pittell; and Dean Peoples, Plaintiffs-Appellants, v. SECRETARY OF STATE OF the State of WASHINGTON, Ralph Munro, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1417

765 F.2d 1417

SOCIALIST WORKERS PARTY; Leroy Watson; Louise Pittell; and Dean Peoples, Plaintiffs-Appellants, v. SECRETARY OF STATE OF the State of WASHINGTON, Ralph Munro,

Defendant-Appellee.

No. 84-3806.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 3, 1984.

Decided July 17, 1985.

Daniel H. Smith, Seattle, Wash., for plaintiffs-appellants.

James Johnson, SAAG Sp. Asst. Atty. Gen., Olympia, Wash., for defendant-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before BROWNING, Chief Judge, GOODWIN and SKOPIL, Circuit Judges.

James R. BROWNING, Chief Judge:

Plaintiffs filed suit challenging the constitutionality of Wash.Rev.Code section 29.18.110 (West Supp.1985) on the ground that it effectively barred minor parties from participating in general elections for statewide office and thus deprived these parties, their members, and the voters of Washington of rights protected by the first and fourteenth amendments. Both parties filed motions for summary judgment. The district court gave judgment for defendants. Plaintiffs appealed.

I.

Prior to 1977, minor political parties did not participate in Washington's primary election. Each minor party nominated its candidates for public office at a convention, attended by at least one hundred registered voters. Wash.Rev.Code Secs. 29.24.020 and 29.24.030 (1965) (amended 1977). The minor party nominee was placed on the ballot for the general election upon the filing of a certificate signed by at least one hundred registered voters present at the party's convention. Wash.Rev.Code Secs. 29.24.040 and 29.30.100 (1965) (amended 1977).

Washington amended its election law in 1977. The convention-certificate requirement for nomination of a minor party candidate is retained, but an additional condition is imposed upon minor party access to the general election ballot. The name of the nominee selected by a minor party by the convention-certification procedure is no longer placed directly on the general election ballot but instead is placed on the ballot for the state's primary election. Wash.Rev.Code Sec. 29.18.020 (West Supp.1985). The primary ballot also includes the names of those persons who have declared their candidacy for nomination by the major parties. The nominee of a minor party or a candidate for nomination of a major party is placed on the general election ballot only if he receives 1% of the total primary vote for all candidates for the particular office, and a plurality of the votes cast for candidates of his party for that office. Wash.Rev.Code Sec. 29.18.110. As a practical matter the first condition affects only minor parties because the vote cast for the two major parties has consistently far exceeded 1% of the total vote. The second condition affects only major party candidates because a minor party is permitted to place on the primary ballot only the single nominee already selected by the convention-certificate process. Wash.Rev.Code Secs. 29.18.020, 29.24.020.

II.

The Supreme Court recently restated the analytic process to be followed in resolving first and fourteenth amendment challenges to state election laws:

[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.

Anderson v. Celebrezze, 460 U.S. 780, 789, 103 S.Ct. 1564, 1570, 75 L.Ed.2d 547 (1983).

We turn first to the (1) character and (2) magnitude of the injury to the first and fourteenth amendment rights plaintiffs seek to vindicate.

Plaintiffs contend the primary vote requirement imposed by Wash.Rev.Code section 29.18.110 has substantially barred minor party candidates for statewide offices from the ballot for Washington's general elections since 1977.

Statutes restricting access to the ballot by a party's candidates limit both "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." Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968). The injury to these fundamental rights is particularly serious where, as here, the burden "falls unequally on new or small political parties," for "[b]y limiting the opportunities of independent-minded voters to associate in the electoral arena to enhance their political effectiveness as a group, such restrictions threaten to reduce diversity and competition in the marketplace of ideas." Anderson, 460 U.S. at 793-94, 103 S.Ct. at 1572-73. See also Clements v. Fashing, 457 U.S. 957, 964-65, 102 S.Ct. 2836, 2844-45, 73 L.Ed.2d 508 (1982), and cases cited.

It is evident that the infringement upon constitutional rights involved in this case is serious in character. The magnitude of the restraint--the extent to which it has inhibited minor party access to the ballot--is dramatic.

Prior to 1977, candidates of minor parties qualified for the general election ballot in contests for statewide office with regularity. At least one minor party appeared on the general election ballot in every Washington gubernatorial election from 1896 to 1976 except 1952. Two or more minor party candidates qualified in all but two of these elections. Forty minor party candidates appeared on the general election ballot for statewide offices in the five general elections between 1968 and 1976.

The 1977 amendment to Wash.Rev.Code section 29.18.110 worked a striking change. According to the affidavit of Washington's Supervisor of Elections, since 1977 minor parties "have not been successful at qualifying candidates for the state general election ballot for statewide offices." Although one or more minor parties nominated candidates in each of the four statewide elections held between 1978 and 1983, none qualified for the general election ballot. In 1984 one of four minor party candidates nominated qualified for the general election ballot.

There is some indication that Washington's legislature simply underestimated the adverse impact of the statutory revision upon minor party access to the general election ballot. While the legislation was under consideration, the Office of the Secretary of State addressed a memorandum to the legislators stating that if the proposed legislation had been applicable to the 1976 special election, eight of the twelve parties and fifty of the sixty-five non-presidential candidates in that election would have qualified for the general election ballot. Contrary to this prediction, minor party candidates have been substantially eliminated from Washington's general election ballot.

Washington argues that three "independent" candidates qualified for the general election ballot during this period. But an election scheme that operates to exclude minor parties from the ballot is not acceptable merely because it permits independent candidates access to the ballot. "[T]he political party and the independent candidate approaches to political activity are entirely different and neither is a satisfactory substitute for the other." Storer v. Brown, 415 U.S. 724, 745, 94 S.Ct. 1274, 1286, 39 L.Ed.2d 714 (1974).

Washington argues there is no significant difference between independent and minority party candidates in Washington because Washington's single "blanket" primary includes all parties and candidates, and a voter may vote for candidates from different parties for different offices. But the mere fact that the cost of voting for a minor party candidate in Washington is less than it is in states having restricted primaries, does not refute plaintiffs' demonstration that Washington has substantially barred minor parties from the general election ballot.

Washington asserts that voters may express their preference for a minor party candidate by writing-in the candidate's name on the general election ballot. The Washington statute appears to forbid voters from writing-in the name of a minor party candidate who has failed to qualify for a place on the ballot. See Wash.Rev.Code Sec. 29.51.170. In any event, the possibility of writing-in a minor candidate "is not an adequate substitute for having the candidate's name appear on the printed ballot." Anderson, 460 U.S. at 799 n. 26, 103 S.Ct. at 1575 n. 26. See also Lubin v. Panish, 415 U.S. 709, 719 n. 5, 94 S.Ct. 1315, 1321 n. 5, 39 L.Ed.2d 702 (1974).

Washington points to several features of the 1977 revision that arguably benefitted minor parties. Prior to the revision, the statute required minor parties to hold their conventions on the same day as the major party primary, forcing voters to choose between them; under the revision, minor party conventions precede the primary and, as noted earlier, primary voters may vote for a minor party candidate for an office without forgoing the opportunity to vote for candidates of other parties for other offices. In addition, Washington contends, the requirement that minor parties participate in the "blanket" primary improves the opportunity of minor party candidates to appear in candidate forums and otherwise gain public attention. These benefits are insubstantial in the face of the undisputed evidence that the revision as a whole substantially forecloses minor parties from the general election ballot. Moreover, the state does not argue the benefits it extols could not be achieved by less restrictive means.

III.

We turn to an...