Tsongas v. Secretary of Com.

• Decision Date: 29 December 1972
• Citation: 291 N.E.2d 149,362 Mass. 708
• Parties: Paul E. TSONGAS et al. 1 v. SECRETARY OF the COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 149

291 N.E.2d 149

362 Mass. 708

Paul E. TSONGAS et al. ¹ v. SECRETARY OF the COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 3, 1972.

Decided Dec. 29, 1972.

Walter H. Mayo, III, Asst. Atty. Gen. (Michael A. D'Avolio, Asst. Secretary of the Commonwealth, and Henry Sontag, Boston, with him), for the Secretary of the Commonwealth.

W. Barry Macdonald, Lynn, for Daniel J. Burke et al., interveners, also with him.

William P. Homans, Jr., Boston (Paul G. Counihan, Boston, with him), for Paul E. Tsongas et al.

Richard D. Clarey, Boston, for Civil Liberties Union of Massachusetts, amicus curiae, submitted a brief.

Gerald F. O'Leary, amicus curiae, submitted a brief.

Jacob C. Diemert, Chestnut Hill, for John T. Collins, amicus curiae, submitted a brief.

Before TAURO, C.J., and QUIRICO, BRAUCHER, HENNESSEY and KAPLAN, JJ.

BRAUCHER, Justice.

The plaintiffs are two candidates for county commissioner and one for county treasurer of Middlesex County. They sought injunctive and declaratory relief in the county court, contending that G.L. c. 53, § 34, as amended through St.1970, c. 41, ² and c. 54, § 42, as amended through St.1972, c. 97, ³ relating to the position of candidates on primary and final election ballots, violate art. 9 ⁴ of the Declaration of Rights of the Massachusetts Constitution. Two additional parties were permitted to intervene, ⁵ and memoranda were submitted by friends of the court. ⁶ The single justice granted the relief sought, and the defendant and the interveners sought review by the full court.

We are informed by the defendant that nomination papers were available to all candidates for public office on April 15, 1972, and that the plaintiffs' papers were to be filed no later than July 5, 1972. The plaintiffs' bill of complaint was filed on July 6, 1972. A separate action was brought in the United States District Court for the District of Massachusetts, seeking similar relief based on the Fourteenth Amendment to the Constitution of the United States; that action was stayed by a three-judge court on July 21, 1972, 'until after the decision of the State question,' and interlocutory relief pending appeal to theUnited States Supreme Court was denied on August 11, 1972, by a justice of that court.

After hearing, the decree of the single justice was entered in the county court on July 26, 1972. The appeals were argued before the full court on August 1, 1972. It then appeared that the printer would not guarantee delivery of ballots for the September 19 primary unless he received final copy by August 1. It also appeared that the plaintiffs had alleged that 'a candidate given a position at the head of the ballot has distinct advantage over other candidates,' that the defendant had demanded proof of that allegation, and that no evidence had been taken before the single justice.

Accordingly, an order of the full court was entered on August 1, staying the decree of the single justice, remanding the case to him for an evidentiary hearing and findings of fact with respect to the quoted allegation, and permitting the defendant to proceed with the printing of ballots and the arranging of names in accordance with the usual practice, 'in order to prevent a disruption of the election process which might result from a ruling requiring precipitate changes.'

Evidentiary hearings were held before the single justice on August 9, 1972, and September 6, 1972, and the single justice filed findings of fact on September 20, 1972. We summarize his findings. 'Given the complex nature of voting behavior influenced by numerous variables, not all of which can be identified and few of which can be accurately measured, and given the inherent difficulty of conducting a direct empirical study of the effect of ballot position, proof of an advantage associated with being first on the ballot is necessarily imprecise.' In a significant number of elections, first ballot position appears to be the most advantageous position. The most important factors influencing the extent of the advantage are 'visibility,' the number of candidates, and the position on the overall ballot. In the primary election in issue in Middlesex County the office of county commissioner appeared seventh on the overall ballot, with eleven candidates; county treasurer was eighth and last, with four candidates. These offices are relatively low-level and unpublicized offices, and a candidate given first ballot position has a distinct advantage. Incumbency is a more significant and consistent advantage than first ballot position, but an additional advantage is conferred by first ballot position. The same factors are applicable in the final elections.

On September 19, 1972, before the findings of fact where filed, the primary election was held. The two plaintiffs who were candidates for county commissioner prevailed, and there will be no incumbents on the ballot for that position in the final election. Under G.L. c. 54, § 42, the candidates of political parties will be listed in alphabetical order; if such listing is unconstitutional, these plaintiffs seek a declaration to that effect, but in view of the pressure of time they do not now seek injunctive relief. The plaintiff who was a candidate for county treasurer appears to have lost to the incumbent in the primary; he seeks an order either directing that a new primary be held or placing him on the ballot for the final election. On October 6, 1972, an order of the full court was entered permitting the Secretary of State to proceed with the printing of ballots and arranging of names for the election of November 7, 1972, in accordance with the usual practice, omitting the name of the plaintiff Counihan as a candidate for county treasurer.

1. We adhere to the ruling implicit in our order of August 1, 1972, that the question whether and to what extent first ballot position confers a distinct advantage is a question of fact. See Duarte, petitioner,331 Mass. 747, 748--749, 122 N.E.2d 890. In most of the cases on the point, it has been decided only after an evidentiary hearing. Weisberg v. Powell,417 F.2d 388, 392--393 (7th Cir.). Bohus v. Board of Election Comrs., 447 F.2d 821, 824 (7th Cir.). Kautenburger v. Jackson, 85 Ariz. 128, 131, 333 P.2d 293. Matter of Holtzman v. Power, 62 Misc.2d 1020, 1021, 313 N.Y.S.2d 904, affd. 34 A.D.2d 917, 311 N.Y.S.2d 824, affd. 27 N.Y.2d 628, 313 N.Y.S.2d 760, 261 N.E.2d 666. Elliott v. Secretary of State, 295 Mich. 245, 249, 294 N.W. 171, has been cited to us as authority for taking judicial notice, but there the policy of rotating ballots had been embodied in legislation, and the court was merely expounding the legislative judgment. See Groesbeck v. Board of State Canvassers, 251 Mich. 286, 297, 232 N.W. 387. Treating the question as one of fact, we cannot say that the findings of the single justice are plainly wrong, and we accept them. Compare Ray v. Registrars of Voters of Ashland, 221 Mass. 223, 226, 108 N.E. 1051; Mansfield v. Secretary of the Commonwealth, 228 Mass. 262, 264, 117 N.E. 311. His findings are consistent with the findings made in the cited cases relating to similar issues, and are supported by testimony taken before him, although there was contrary testimony on some points. It matters not that they might be contrary to the personal experience of some of us, or that we might have made different findings on the same evidence.

2. We also adhere to the ruling implicit in our order of August 1, 1972, that 'a court can reasonably endeavor to avoid a disruption of the election process which might result from requiring precipitate changes . . ..' Reynolds v. Sims, 377 U.S. 533, 585, 84 S.Ct. 1362, 1394, 12 L.Ed. 506. Where it is impossible to grant relief without disrupting the election process, as where a last-minute change of ballots poses a risk of interference with the rights of the voters, relief may be denied. Williams v. Rhodes, 393 U.S. 23, 34--35, 89 S.Ct. 5, 21 L.Ed.2d 24. The plaintiffs recognized these principles. They contended that rotation of ballots, substantially in the manner provided in G.L. c. 54A, § 5, repealed by St.1972, c. 596, § 2, for municipal elections by proportional representation or preferential voting, was the only way to assure equal treatment of candidates and was therefore required by art. 9 of the Declaration of Rights; but they were willing in view of the pressures of time, to accept ballot placement by lottery. We refused to run the risk of disrupting the primary.

If we assume, without deciding, that the Massachusetts Constitution requires the rotation of primary ballots, we think the same considerations which led us to refuse interlocutory relief now require us to treat the results of the primary as final. Roberts v. Byrd, 344 S.W.2d 378, 379--380 (Ky.). Groesbeck v. Board of State Canvassers, 251 Mich. 286, 296--297, 232 N.W. 387. Bees v. Gilronan, 116 N.E.2d 317, 321 (Ohio Com.Pl.). Schell v. Studebaker, 174 N.E.2d 637, 638 (Ohio Com.Pl.). The voters in the primary voted on official ballots furnished by public officials in accordance with a principle which had been embodied in our statutes for more than thirty years. St.1938, c. 473, § 9. As to final elections, see St.1948, c. 272. Those officials had no authority to depart from the statutes on the ground that the statutes were unconstitutional. SCHOOL COMM. OF SPRINGFIELD V. BOARD OF EDUC., MASS., 287 N.E.2D 438.^A The plaintiffs had not moved as promptly as they might have to obtain a judicial decision. The voters were not misled. Failure to rotate the names did not lessen the opportunity of any voter to cast a vote for the candidate of his choice, nor did it create an opportunity to vote illegally. Even though we assume that the first ballot position of the incumbents deprived the plaintiffs of an equal chance to benefit from the indifference of careless voters first name, that speculative benefit does not override the rights...