Georgia law provides that any political organization whose
candidate received 20% or more of the vote at the most recent
gubernatorial or presidential election is a "political party." Any
other political organization is a "political body." "Political
parties" conduct primary elections, and the name of the winning
candidate for each office is printed on the ballot. A nominee of a
"political body" or an independent candidate may have his name on
the ballot if he files a nominating petition signed by not less
than 5% of those eligible to vote at the last election for the
office he is seeking. The time for circulating the petition is 180
days, and it must meet the same deadline as a candidate in a party
primary. Electors who sign a nominating petition are not restricted
in any way, and there is no limitation on write-in votes on
ballots.
Held: The challenge of appellants, prospective
candidates and registered voters, to this election procedure was
properly rejected, as it does not abridge the rights of free speech
and association secured by the First and Fourteenth Amendments, and
is not violative of the Fourteenth Amendment's Equal Protection
Clause.
Williams v. Rhodes, 393 U. S.
23, distinguished. Pp.
403 U. S.
434-442.
315
F. Supp. 1035, affirmed.
STEWART, J., delivered the opinion of the Court, in which
BURGER, C.J., and DOUGLAS, BRENNAN, WHITE, MARSHALL, and BLACKMUN,
JJ., joined. BLACK and HARLAN, JJ., concurred in the result.
Page 403 U. S. 432
MR. JUSTICE STEWART delivered the opinion of the Court.
Under Georgia law, a candidate for elective public office who
does not enter and win a political party's primary election can
have his name printed on the ballot at the general election only if
he has filed a nominating petition signed by at least 5% of the
number of registered voters at the last general election for the
office in question. [
Footnote
1] Georgia law also provides that a candidate for elective
public office must pay a filing fee equal to 5% of the annual
salary of the office he is seeking. [
Footnote 2] This litigation arose when the appellants, who
were prospective candidates and registered voters, [
Footnote 3] filed a class action in the
United States District Court for the Northern District of Georgia
attacking the constitutionality of these provisions of the Georgia
Election Code and seeking declaratory and injunctive relief.
A three-judge court was convened pursuant to 28 U.S.C. §§ 2281
and 2284. Thereafter the appellants filed a motion for summary
judgment based upon a stipulation as to the relevant facts. The
District Court granted the motion and entered an injunction with
respect to the filing fee requirement, holding that this
requirement operates to deny equal protection of the laws as
applied to those prospective candidates who cannot afford to pay
the fees. No appeal was taken from that injunctive order. With
respect to the nominating petition
Page 403 U. S. 433
requirement, the District Court denied the motion and refused to
enter an injunction, holding that this statutory provision is
constitutionally valid. [
Footnote
4] From that refusal a direct appeal was brought here under 28
U.S.C. § 1253, and we noted probable jurisdiction. [
Footnote 5]
The basic structure of the pertinent provisions of the Georgia
Election Code is relatively uncomplicated. Any political
organization whose candidate received 20% or more of the vote at
the most recent gubernatorial or presidential election is a
"political party." [
Footnote 6]
Any other political organization is a "political body." [
Footnote 7] "Political parties" conduct
primary elections, regulated in detail by state law, and only the
name of the candidate for each office who wins this primary
election is printed on the ballot at the subsequent general
election as his party's nominee for the office in question.
[
Footnote 8] A nominee of a
"political body" or an independent candidate, on the other hand,
may have his name printed on the ballot at the general election by
filing a nominating petition. [
Footnote 9] This petition must be signed by
"a number of electors of not less than five percent. of the
total number of electors eligible to vote in the last election for
the filling of the office the candidate is seeking. . . . [
Footnote 10] The total time allowed
for circulating a nominating petition is 180 days, [
Footnote 11] and it must be filed on the
second Wednesday in
Page 403 U. S. 434
June, the same deadline that a candidate filing in a party
primary must meet. [
Footnote
12]"
It is to be noted that these procedures relate only to the right
to have the name of a candidate or the nominee of a "political
body" printed on the ballot. There is no limitation whatever,
procedural or substantive, on the right of a voter to write in on
the ballot the name of the candidate of his choice and to have that
write-in vote counted.
In this litigation, the appellants have mounted their attack
upon Georgia's nominating petition requirement on two different but
related constitutional fronts. First, they say that to require a
nonparty candidate to secure the signatures of a certain number of
voters before his name may be printed on the ballot is to abridge
the freedoms of speech and association guaranteed to that candidate
and his supporters by the First and Fourteenth Amendments.
Secondly, they say that, when Georgia requires a nonparty candidate
to secure the signatures of 5% of the voters before printing his
name on the ballot, yet prints the names of those candidates who
have won nomination in party primaries, it violates the Fourteenth
Amendment by denying the nonparty candidate the equal protection of
the laws. Since both arguments are primarily based upon this
Court's decision in
Williams v. Rhodes, 393 U. S.
23, it becomes necessary to examine that case in some
detail.
In the
Williams case, the Court was confronted with a
state electoral structure that favored "two particular parties --
the Republicans and the Democrats -- and, in effect, tend[ed] to
give them a complete monopoly."
Id. at
393 U. S. 32.
The Court held unconstitutional the election laws of Ohio insofar
as, in combination, they made it
"virtually
Page 403 U. S. 435
impossible for a new political party, even though it ha[d]
hundreds of thousands of members, or an old party, which ha[d] a
very small number af members, to be placed on the state ballot"
in the 1968 presidential election.
Id. at
393 U. S. 24.
The state laws made "no provision for ballot position for
independent candidates, as distinguished from political parties,"
id. at
393 U. S. 26,
and a new political party, in order to be placed on the ballot, had
"to obtain petitions signed by qualified electors totaling 15% of
the number of ballots cast in the last preceding gubernatorial
election."
Id. at
393 U. S. 24-25. But this requirement was only a
preliminary. For, although the Ohio American Independent Party in
the first six months of 1968 had obtained more than 450,000
signatures -- well over the 15% requirement -- Ohio had nonetheless
denied the party a place on the ballot, by reason of other
statutory "burdensome procedures, requiring extensive organization
and other election activities by a very early date,"
id.
at
393 U. S. 33
--
"including the early deadline for filing petitions [February 7,
1968] and the requirement of a primary election conforming to
detailed and rigorous standards. . . ."
Id. at
393 U. S. 27.
[
Footnote 13]
Page 403 U. S. 436
In a separate opinion, MR. JUSTICE DOUGLAS described the then
structure of Ohio's network of election laws in accurate
detail:
"Ohio, through an entangling web of election laws, has
effectively foreclosed its presidential ballot to all but
Republicans and Democrats. It has done so initially by abolishing
write-in votes, so as to restrict candidacy to names on the ballot;
it has eliminated all independent candidates through a requirement
that nominees enjoy the endorsement of a political party; it has
defined 'political party' in such a way as to exclude virtually all
but the two major parties."
"A candidate who seeks a place on the Ohio presidential ballot
must first compile signatures of qualified voters who total at
least 15% of those voting in the last gubernatorial election. In
this election year, 1968, a candidate would need 433,100 such
signatures. Moreover, he must succeed in gathering them long before
the general election, since a nominating petition must be filed
with the Secretary of State in February. That is not all: having
compiled those signatures, the candidate must further show that
he
Page 403 U. S. 437
has received the nomination of a group which qualifies as a
'political party' within the meaning of Ohio law. It is not enough
to be an independent candidate for President with wide popular
support; one must trace his support to a political party."
"To qualify as a party, a group of electors must participate in
the state primary, electing one of its members from each county
ward or precinct to a county central committee; two of its members
from each congressional district to a state central committee; and
some of its members as delegates and alternates to a national
convention. Moreover, those of its members who seek a place on the
primary ballot as candidates for positions as central committeemen
and national convention delegates must demonstrate that they did
not vote in any other party primary during the preceding four
years, and must present petitions of endorsement on their behalf by
anywhere from five to 1,000 voters who likewise failed to vote for
any other party in the last preceding primary. Thus, to qualify as
a third party, a group must first erect elaborate political
machinery, and then rest it upon the ranks of those who have proved
both unwilling and unable to vote."
393 U.S. at
393 U. S.
35-37.
The Court's decision with respect to this "entangling web of
election laws" was unambiguous and positive. It held that
"the totality of the Ohio restrictive laws, taken as a whole,
imposes a burden on voting and associational rights which we hold
is an invidious discrimination, in violation of the Equal
Protection Clause."
Id. at
393 U. S. 34.
[
Footnote 14]
Page 403 U. S. 438
But the
Williams case, it is clear, presented a
statutory scheme vastly different from the one before us here.
Unlike Ohio, Georgia freely provides for write-in votes. Unlike
Ohio, Georgia does not require every candidate to be the nominee of
a political party, but fully recognizes independent candidacies.
Unlike Ohio, Georgia does not fix an unreasonably early filing
deadline for candidates not endorsed by established parties. Unlike
Ohio, Georgia does not impose upon a small party or a new party the
Procrustean requirement of establishing elaborate primary election
machinery. Finally, and in sum, Georgia's election laws, unlike
Ohio's, do not operate to freeze the political
status quo.
In this setting, we cannot say that Georgia's 5% petition
requirement violates the Constitution.
Anyone who wishes, and who is otherwise eligible, may be an
independent candidate for any office in Georgia. Any political
organization, however new or however small, is free to endorse any
otherwise eligible person as its candidate for whatever elective
public office it chooses. So far as the Georgia election laws are
concerned, independent candidates and members of small or newly
formed political organizations are wholly free to associate, to
proselytize, to speak, to write, and to organize campaigns for any
school of thought they wish. They may confine themselves to an
appeal for write-in votes. Or they may seek, over a six months'
period, the signatures of 5% of the eligible electorate for the
office in question. If they choose the latter course, the way is
open. For Georgia imposes no suffocating restrictions whatever upon
the free circulation of nominating petitions. A voter may sign a
petition even though he
Page 403 U. S. 439
has signed others, [
Footnote
15] and a voter who has signed the petition of a nonparty
candidate is free thereafter to participate in a party primary.
[
Footnote 16] The signer of
a petition is not required to state that he intends to vote for
that candidate at the election. [
Footnote 17] A person who has previously voted in a party
primary is fully eligible to sign a petition, [
Footnote 18] and so, on the other hand, is a
person who was not even registered at the time of the previous
election. [
Footnote 19] No
signature on a nominating petition need be notarized. [
Footnote 20]
The open quality of the Georgia system is far from merely
theoretical. For the stipulation of facts in this record informs us
that a candidate for Governor in 1966 [
Footnote 21] and a candidate for President in 1968,
[
Footnote 22] gained ballot
designation by nominating petitions, and each went on to win a
plurality of the votes cast at the general election. [
Footnote 23]
In a word, Georgia in no way freezes the
status quo,
but implicitly recognizes the potential fluidity of American
political life. Thus, any political body that wins as much as 20%
support at an election becomes a "political party" with its
attendant ballot position rights and primary election obligations,
and any "political party" whose support at the polls falls below
that figure reverts to the status of a "political body," with its
attendant
Page 403 U. S. 440
nominating petition responsibilities and freedom from primary
election duties. We can find in this system nothing that abridges
the rights of free speech and association secured by the First and
Fourteenth Amendments.
The appellants' claim under the Equal Protection Clause of the
Fourteenth Amendment fares no better. This claim is necessarily
bottomed upon the premise that it is inherently more burdensome for
a candidate to gather the signatures of 5% of the total eligible
electorate than it is to win the votes of a majority in a party
primary. [
Footnote 24] That
is a premise that cannot be uncritically accepted. Although the
number of candidates in a party primary election for any particular
office will, of course, vary from election to election, the
appellee's brief advises us that, in the most recent election year,
there were 12 candidates for the nomination for the office of
Governor in the two party primaries. Only two of these 12, of
course, won their party primaries and had their names printed on
the ballot at the general election. Surely an argument could as
well be made on behalf of the 10 who lost that it is they who were
denied equal protection
vis-a-vis a candidate who could
have had his name printed on the ballot simply by filing a
nominating petition signed by 5% of the total electorate.
The fact is, of course, that, from the point of view of one who
aspires to elective public office in Georgia, alternative routes
are available to getting his name printed on the ballot. He may
enter the primary of a political party, or he may circulate
nominating petitions either as an independent candidate or under
the sponsorship of a political organization. [
Footnote 25] We cannot see how
Page 403 U. S. 441
Georgia has violated the Equal Protection Clause of the
Fourteenth Amendment by making available these two alternative
paths, neither of which can be assumed to be inherently more
burdensome than the other.
Insofar as we deal here with the claims of a "political body,"
as contrasted with those of an individual aspirant for public
office or an individual voter, [
Footnote 26] the situation is somewhat different. For it
is true that a "political party" in Georgia is assured of having
the name of its nominee -- the primary election winner -- printed
on the ballot, whereas the name of the nominee of a "political
body" will be printed only if nominating petitions have been filed
that contain the requisite number of signatures. But we can hardly
suppose that a small or a new political organization could
seriously urge that its interests would be advanced if it were
forced by the State to establish all of the elaborate state-wide,
county-by-county, organizational paraphernalia required of a
"political party" as a condition for conducting a primary election.
[
Footnote 27] Indeed, a
large reason for the Court's invalidation of the Ohio election laws
in
Williams v. Rhodes, supra, was precisely that Ohio did
impose just such requirements on small and new political
organizations.
The fact is that there are obvious differences in kind between
the needs and potentials of a political party with historically
established broad support, on the one hand, and a new or small
political organization, on the other. Georgia has not been guilty
of invidious discrimination
Page 403 U. S. 442
in recognizing these differences and providing different routes
to the printed ballot. Sometime the grossest discrimination can lie
in treating things that are different as though they were exactly
alike, a truism well illustrated in
Williams v. Rhodes,
supra.
There is surely an important State interest in requiring some
preliminary showing of a significant modicum of support before
printing the name of a political organization's candidate on the
ballot -- the interest, if no other, in avoiding confusion,
deception, and even frustration of the democratic process at the
general election. The 5% figure is, to be sure, apparently somewhat
higher than the percentage of support required to be shown in many
States as a condition for ballot position, [
Footnote 28] but this is balanced by the fact
that Georgia has imposed no arbitrary restrictions whatever upon
the eligibility of any registered voter to sign as many nominating
petitions as he wishes. Georgia in this case has insulated not a
single potential voter from the appeal of new political voices
within its borders.
The judgment is affirmed.
MR. JUSTICE BLACK and MR. JUSTICE HARLAN concur in the
result.
[
Footnote 1]
Ga.Code Ann. § 31010 (1970).
[
Footnote 2]
Ga.Code Ann. .§ 31013.
[
Footnote 3]
One of the appellants was the nominee of the Georgia Socialist
Workers Party for Governor in 1970, two others were nominees of
that organization for the House of Representatives, and two others
were registered voters who sued on behalf of themselves, and
"all other registered voters in the State of Georgia desirous of
having an opportunity to consider persons on the ballot other than
nominees of the Democratic and Republican parties."
[
Footnote 4]
Georgia Socialist Workers Party v.
Fortson, 315 F.
Supp. 1035.
[
Footnote 5]
400 U.S. 877.
[
Footnote 6]
Ga.Code Ann. § 34-103(u).
[
Footnote 7]
Ga.Code Ann. § 34-103(s).
[
Footnote 8]
See, e.g., Ga.Code Ann. §§ 34-1004 to 34-1006, 34-1008,
34-1009, 34-1014, 34-1015, 34-1102, 34-1301 to 34-1303, 34-1308,
34-1507, 34-1513.
[
Footnote 9]
Ga.Code Ann. § 34-1001.
[
Footnote 10]
Ga.Code Ann. § 34-1010(b).
[
Footnote 11]
Ga.Code Ann. § 34-1010(e)
[
Footnote 12]
Compare Ga.Code Ann. § 34-1002(b)
with Ga.Code
Ann. § 34-1005(b).
[
Footnote 13]
In describing these burdens, the Court quoted the description
contained in the dissenting opinion of a member of the three-judge
District Court from which the appeal in the
Williams case
had come:
"Judge Kinneary describes, in his dissenting opinion below, the
legal obstacles placed before a would-be third party even after the
15% signature requirement has been fulfilled: "
"
First, at the primary election, the new party, or any
political party, is required to elect a state central committee
consisting of two members from each congressional district and
county central committees for each county in Ohio. [Ohio Rev.Code
§§ 3517.02-3517.04.]
Second, at the primary election, the
new party must elect delegates and alternates to a national
convention. [Ohio Rev.Code § 3505.10.] Since Section 3513.19.1,
Ohio Rev.Code, prohibits a candidate from seeking the office of
delegate to the national convention or committeeman if he voted as
a member of a different party at a primary election in the
preceding four year period, the new party would be required to have
over twelve hundred members who had not previously voted in another
party's primary, and who would be willing to serve as committeemen
and delegates.
Third, the candidates for nomination in the
primary would have to file petitions signed by qualified electors.
[Ohio Rev.Code § 3513.05.] The term 'qualified electors' is not
adequately defined in the Ohio Revised Code [§ 3501.01(H)], but a
related section [§ 3513.19], provides that a qualified elector at a
primary election of a political party is one who, (1) voted for a
majority of that party's candidates at the last election, or, (2)
has never voted in any election before. Since neither of the
political party plaintiffs had any candidates at the last preceding
regular state election, they would, of necessity, have to seek out
members who had never voted before to sign the nominating
petitions, and it would be only these persons who could vote in the
primary election of the new party."
393 U.S. at
393 U. S. 25 n.
1.
[
Footnote 14]
MR. JUSTICE DOUGLAS, while joining the opinion of the Court,
filed a separate opinion giving emphasis to the First Amendment
values involved.
Id. at
393 U. S. 35.
MR. JUSTICE HARLAN filed an opinion concurring in the judgment,
explaining why he would have rested decision
"entirely on the proposition that Ohio's statutory scheme
violates the basic right of political association assured by the
First Amendment which is protected against state infringement under
the Due Process Clause of the Fourteenth Amendment."
Id. at
303 U. S. 41.
[
Footnote 15]
Contrast, e.g., La.Rev.Stat.Ann. § 18:624(A) (1969);
N.Y.Election Law § 138(6) (1964).
[
Footnote 16]
Contrast, e.g., R.I.Gen.Laws Ann. § 17-16-8 (1969).
[
Footnote 17]
Contrast, e.g., N.Y.Election Law § 138(2) (1964).
[
Footnote 18]
Contrast, e.g., Cal. Elections Code § 6830(c) (1961);
Colo.Rev.Stat.Ann. § 49-7-1(4) (Supp. 1967).
[
Footnote 19]
Contrast, e.g., N.Y.Election Law § 138(2) (1964).
[
Footnote 20]
Contrast, e.g., Colo.Rev.Stat.Ann. § 49-7-1(4) (Supp.
1967).
[
Footnote 21]
See Fortson v. Morris, 385 U.
S. 231.
[
Footnote 22]
This was the candidate whose party Ohio had kept off the ballot
in
Williams v. Rhodes, 393 U. S. 23.
[
Footnote 23]
As a result, the political bodies that endorsed these two
candidates have now presumably acquired the status of political
parties.
[
Footnote 24]
Georgia provides for a second "run-off" primary election in the
event no candidate receives a majority of the votes cast at the
original primary election.
See Ga.Code Ann. §
31513(a).
[
Footnote 25]
The argument that the first alternative route is not
realistically open to a candidate with unorthodox or "radical"
views is hardly valid in the light of American political history.
Time after time, established political parties, at local, state,
and national levels, have, while retaining their old labels,
changed their ideological direction because of the influence and
leadership of those with unorthodox or "radical" views.
[
Footnote 26]
The Georgia Socialist Workers Party was one of the plaintiffs in
the District Court, but is not an appellant here. We may assume,
however, without deciding, that the individual appellants can
properly assert the interests of that "political body."
[
Footnote 27]
See e.g., Ga.Code Ann. § 34-1004.
[
Footnote 28]
See Williams v. Rhodes, 393 U.S. at
393 U. S. 47 n.
10 (HARLAN, J., concurring in result).