Raza Unida Party v. Bullock (349 F. Supp. 1272, 1972)

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, and related Texas election laws. They also seek to enjoin the Texas Secretary of State from enforcing the challenged enactments. ‘íphe 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 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.

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.

j^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 bq^nominated by primary election only.]) ¡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.] ¡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.j-C^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)J[ 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.

[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.]| 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, and those on the other end which do not, this case presents a new combij/’nation 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 plaintiffsj

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 yeai^>

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. -¿^Accordingly, defendant’s Motions to Dismiss Raza Unida Party and the Socialist Workers Party are granted); This dismissal is limited to those issués 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, 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. 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, 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

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

In Bullock v. Carter, supra, the Court for the first time applied the compelling state interest test to restrictions on candidacy. The Court stated that to determine which standard to use when reviewing state regulations barring candidate access to the primary ballot, it is essential to examine the extent and nature of the regulations’ impact on the voters. The Court concluded that because the Texas Filing Fee Law had an appreciable impact on voters’ exercise of the franchise and because this impact was related to the resources of the voters supporting a particular candidate, the state must justify its restrictions under the stricter standard. By this standard the Court must now analyze the impact which the totality of the Texas Election Code has upon the voters.

III.

In order to have the names of its nominees printed on the general election ballot, a new or minority party must meet the following requirements of article 13.45(2):

1. A list of participants in each precinct convention must be signed and certified by the temporary chairman listing the names, addresses (including street or post-office address), and registration certificate numbers of qualified voters attending such precinct conventions. <*The names on this list must total at least 1% of the total votes cast for governor at the last preceding general electionj5*¡This year, the total needed was approximately 22,000 signatures^

2. If the number of qualified voters attending the precinct conventions is less than the required 1%, there must be filed, along with the precinct lists, a petition requesting that the names of the party’s nominees be printed on the general election ballot, signed by a sufficient number of additional qualified voters to make a combined total of at least 1% of the total votes cast for governor in the last preceding general election. The address and registration certificate number of each signer must be shown on the petition.

3. No person who, during the voting year, voted at any primary election or participated in any convention of any other party may attend the minority party convention or sign the petition or the signature will be void and that person subject to criminal penalties.

4. The petition may not be circulated for signatures until after the date set for the holding of the major parties’ primaries. Signatures must be certified to the Secretary of State’s office before 20 days after the date for holding the party’s state convention. This year minority parties had from May 6th until June 30th, or approximately 53 days, to gather signatures.

5. Each person who signs a petition must be administered an oath before a notary public at the time he signs.

Plaintiffs contend that these requirements, singly and in totality, impede the election process, the right of association guaranteed by the First Amendment, and are violative of the Equal Protection and Due Process Clauses of the Fourteenth Amendment. The State of Texas argues that it has a compelling interest in requiring some minimum amount of public support before placing a candidate’s name on the ballot and in assuring that all candidates are in fact seeking elective office in good faith. The Court agrees that these are valid state objectives. A review of the decisions since Williams v. Rhodes, supra, leads this Court to conclude that the totality of the scheme required by article 13.45(2) is not constitutionally impermissible. The Supreme Court in Jenness v. Fortson, supra, balanced Georgia’s “relatively high” 5% petition requirement against the absence of oppressive party organization requirements, voter cross-over prohibitions, or a restrictive petition circulating time period. Likewise, Texas’ lenient 1% petition requirement must be balanced against its more burdensome party organization, circulation, and anti-raiding requirements.

Certainly the minimal 1% required by Texas to show voter support as a condition for ballot position serves a legitimate state objective. Percentage requirements of 15%, 7%, and 2% have been struck down by some Courts. But other Courts have upheld percentage requirements ranging from 1% to 5%. Even in Williams v. Rhodes, the Court noted the lenient 1% requirements of a vast majority of the states. Although any percentage requirement is necessarily going to be arbitrary, 1% is a fair minimum to serve the state’s compelling interest in this regard.

The Court in Jenness, 403 U.S. at 441, 91 S.Ct. 1970, 1975-1976, 29 L.Ed. 2d 554, pointed out that “a large reason” for the invalidation of the Ohio election scheme in Williams was Ohio’s requirement that small parties establish “elaborate statewide, county-by-county, organizational paraphernalia.” The Texas requirement of precinct, county, and state conventions is obviously more burdensome than the Georgia scheme upheld in Jenness, but is clearly more hospitable to new or small parties than was the “entangling web of election laws” invalidated in Williams. Following the Jenness command to look to the “totality” of a state’s requirements, and balancing Texas’ burdensome organization requirements against its lenient 1% petition requirement, we hold that the organization requirements are constitutionally permissible.

Plaintiffs challenge the provisions of article 13.45(2) which prevent the circulation of minority party nominating petitions until the day following the majority parties’ primary elections, and then prohibit anyone who has voted in a primary from signing a minority party petition. The State argues that the requirement that a new party hold a precinct convention on primary day affords that party an equal opportunity with all other parties to attract the voter to its political process. Thus, if the party has at least 1% support, and the people attend the convention, there is no need for the petition requirement at all. Additionally, if the petitions are circulated well in advance of the precinct conventions and primary elections, a voter may sign before another party’s position has crystallized and the voter would be precluded from changing his mind. Third, the State argues that by delaying the petition circulating process until after the primary election, there is less chance that individual voters will become confused or engage in the party process of more than one party.

We agree with the State’s contentions.