Applicants claim that a recent Atlanta ordinance will exclude
political candidates who cannot afford the filing fees it fixes,
and apply to enjoin an election on the ground that the ordinance
violates § 5 of the Voting Rights Act of 1965, and on the ground
(upheld by the District Court) that it violates the Equal
Protection Clause. Since the proximity of the election practicably
forecloses this Court's pre-election decision on the substantial
constitutional issue involved, and a court-ordered election
postponement could be disruptive, all injunction is denied, but the
applicants are temporarily relieved from paying the fee, and the
candidates' filing time is extended.
MR. JUSTICE BLACK, Circuit Justice.
Applicant Ethel Mae Matthews is a prospective candidate for
alderman in an Atlanta, Georgia, municipal election now scheduled
for October 7. Applicant Julia Shields is a duly qualified Atlanta
voter. Both applicants claim that their constitutional and
statutory rights are abridged by the exclusion of potential
candidates for local offices who cannot afford the filing fees
fixed by an Atlanta municipal ordinance of August 26, 1969. They
challenge the ordinance on the ground that fees sought to be
exacted violate the Equal Protection Clause of the Fourteenth
Amendment and § 5 of the Voting Rights Act of 1965, 79 Stat. 439,
42 U.S.C. § 1973c (1964 ed., Supp. 1). The constitutional question
appears to me to be a substantial one which calls for decision by
the full Court. This question is all the more serious because a
three-judge district court decided in this case that the collection
of the filing fees fixed by the ordinance
Page 396 U. S. 1224
does unconstitutionally deny equal protection of the laws. The
city election is presently set for October 7, and, although this
Court meets October 6, it will not have time to consider and decide
the merits of the constitutional claim before the election is to be
held. The result is that applicants cannot have their case decided
unless some provision is made to take care of the problem. A
court-ordered postponement of the election could have a serious
disruptive effect. On the other hand, the refusal or inability to
pay fees deemed unconstitutional might keep serious candidates from
running, thus depriving Atlanta voters of an opportunity to select
candidates of their choice. Both of these undesirable consequences
should be avoided, if possible, and, to some extent, they can be.
This can be done by temporarily relieving applicants from payment
of the challenged fees until the entire Court has had an
opportunity to pass on all the questions raised. Should the
applicants' claims be accepted by the Court, they would then never
be required to pay the challenged fees. Should their claims be
rejected, they would then be subject to the fees. Because the time
for candidates to file notice of their candidacy is scheduled to
expire on September 10, 1969, a necessary element of this order is
that the city should extend the date for candidates to file notice
of their candidacy at least until Tuesday, September 16, 1969. This
disposition permits Atlanta to proceed with the election as now
scheduled. In the alternative, Atlanta officials could decide of
their own accord to postpone the municipal election until after
this Court has had an opportunity to hear and decide the issues
involved.
It is so ordered.