Appellees who sought to become candidates for local office in
the Texas Democratic primary election challenged in the District
Court the validity of the Texas statutory scheme which, without
write-in or other alternative provisions, requires payment of fees
ranging as high as $8,900. Appellees claimed that they were unable
to pay the required fees, and were therefore barred from running.
Under the Texas statute, the party committee estimates the total
cost of the primary and apportions it among candidates according to
its judgment of what is "just and equitable," in light of "the
importance, emolument, and term of office." The fees for local
candidates tend appreciably to exceed those for state-wide
candidates. Following a hearing, the District Court declared the
fee system invalid and enjoined its enforcement. Appellants contend
that the filing fees are necessary both to regulate the primary
ballot and to finance elections.
Held: The Texas primary election filing fee system
contravenes the Equal Protection Clause of the Fourteenth
Amendment. Pp.
405 U. S.
140-149.
(a) Since the Texas statute imposes filing fees of such
magnitude that numerous qualified candidates are precluded from
filing, it falls with unequal weight on candidates and voters
according to their ability to pay the fees, and therefore it must
be "closely scrutinized" and can be sustained only if it is
reasonably necessary to accomplish a legitimate state objective,
and not merely because it has some rational basis. Pp.
405 U. S.
140-144.
(b) Although a State has an interest in regulating the number of
candidates on the ballot and eliminating those who are spurious, it
cannot attain these objectives by arbitrary means such as those
called for by the Texas statute, which eliminates legitimate
potential candidates, like those involved here, who cannot afford
the filing fees. Pp.
405 U. S.
144-147.
(c) The apportionment of costs among candidates is not the only
means available to finance primary elections, and the State can
identify certain bodies as political parties entitled to
sponsorship if the State itself finances the primaries, as it does
general
Page 405 U. S. 135
elections, both of which are important parts of the democratic
process. Pp.
405 U. S.
147-149.
321
F. Supp. 1358, affirmed.
BURGER, C.J., delivered the opinion of the Court, in which all
Members joined except POWELL and REHNQUIST, JJ., who took no part
in the consideration or decision of the case.
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
Under Texas law, a candidate must pay a filing fee as a
condition to having his name placed on the ballot in a primary
election. [
Footnote 1] The
constitutionality of the Texas filing fee system is the subject of
this appeal from the judgment of a three-judge District Court.
Appellee Pate met all qualifications to be a candidate in the
May 2, 1970, Democratic primary for the office of County
Commissioner of Precinct Four for El Paso County, except that he
was unable to pay the $1,424.60 assessment required of candidates
in that primary.
Page 405 U. S. 136
Appellee Wischkaemper sought to be placed on the Democratic
primary ballot as a candidate for County Judge in Tarrant County,
but he was unable to pay the $6,300 assessment for candidacy for
that office. Appellee Carter wished to be a Democratic candidate
for Commissioner of the General Land Office; his application was
not accompanied by the required $1,000 filing fee. [
Footnote 2]
After being denied places on the Democratic primary ballots in
their respective counties, these appellees instituted separate
actions in the District Court challenging the validity of the Texas
filing fee system. Their actions were consolidated, and a
three-judge District Court was convened pursuant to 28 U.S.C. §§
2281 and 2284. Appellee Jenkins was permitted to intervene as a
voter on his claimed desire to vote for Wischkaemper, and appellee
Guzman and others were permitted to intervene as voters desiring to
cast their ballots for Pate. On April 3, 1970, the District Court
ordered that Wischkaemper and Pate be permitted to participate in
the primary conducted on May 2, 1970, without prepayment of filing
fees. [
Footnote 3] Following a
hearing on the merits, the three-judge court declared the Texas
filing fee scheme unconstitutional, and enjoined its enforcement.
[
Footnote 4]
321 F.
Supp. 1358 (ND Tex.1970). A direct
Page 405 U. S. 137
appeal was taken under 28 U.S.C. § 1253, and we noted probable
jurisdiction. 403 U.S. 904.
Under the Texas statute, payment of the filing fee is an
absolute prerequisite to a candidate's participation in a primary
election. There is no alternative procedure by which a potential
candidate who is unable to pay the fee can get on the primary
ballot by way of petitioning voters, [
Footnote 5] and write-in votes are not permitted in
primary elections for public office. [
Footnote 6] Any person who is willing and able to pay the
filing fee and who meets the basic eligibility requirements for
holding the office sought can run in a primary.
Candidates for most district, county, and precinct offices must
pay their filing fee to the county executive committee of the
political party conducting the primary;
Page 405 U. S. 138
the committee also determines the amount of the fee. The party
committee must make an estimate of the total cost of the primary
and apportion it among the various candidates "as in their judgment
is just and equitable." [
Footnote
7] The committee's judgment is to be guided by "the importance,
emolument, and term of office for which the nomination is to be
made." [
Footnote 8] In counties
with populations of one million or more, candidates for offices of
two-year terms can be assessed up to 10% of their aggregate annual
salary, and candidates for offices of four-year terms can be
assessed up to 15% of their aggregate annual salary. [
Footnote 9] In smaller counties, there are no
such percentage limitations. [
Footnote 10]
The record shows that the fees required of the candidates in
this case are far from exceptional in their magnitude. [
Footnote 11] The size of the filing
fees is plainly a
Page 405 U. S. 139
natural consequence of a statutory system that places the burden
of financing primary elections on candidates, rather than on the
governmental unit, and that imposes a particularly heavy burden on
candidates for local office. The filing fees required of candidates
seeking nomination for state offices and offices involving
state-wide primaries are more closely regulated by statute, and
tend to be appreciably smaller. The filing fees for candidates for
State Representative range from $150 to $600, depending on the
population of the county from which nomination is sought. [
Footnote 12] Candidates for State
Senator are subject to a maximum assessment of $1,000. [
Footnote 13]
Page 405 U. S. 140
Candidates for nominations requiring state-wide primaries,
including candidates for Governor and United States Senator, must
pay a filing fee of $1,000 to the chairman of the state executive
committee of the party conducting the primary. [
Footnote 14] Candidates for the State Board
of Education have a fixed filing fee of $50. [
Footnote 15]
(1)
The filing fee requirement is limited to party primary
elections, but the mechanism of such elections is the creature of
state legislative choice, and hence is "state action" within the
meaning of the Fourteenth Amendment.
Gray v. Sanders,
372 U. S. 368
(1963);
Nixon v. Herndon, 273 U.
S. 536 (1927). [
Footnote 16] Although we
Page 405 U. S. 141
have emphasized on numerous occasions the breadth of power
enjoyed by the States in determining voter qualifications and the
manner of elections, this power must be exercised in a manner
consistent with the Equal Protection Clause of the Fourteenth
Amendment.
See, e.g., Williams v. Rhodes, 393 U. S.
23 (1968);
Evans v. Cornman, 398 U.
S. 419 (1970);
Carrington v. Rash, 380 U. S.
89 (1965). The question presented in this case is
whether a state law that prevents potential candidates for public
office from seeking the nomination of their party due to their
inability to pay a portion of the cost of conducting the primary
election is state action that unlawfully discriminates against the
candidates so excluded or the voters who wish to support them.
[
Footnote 17]
Page 405 U. S. 142
The threshold question to be resolved is whether the filing fee
system should be sustained if it can be shown to have some rational
basis, [
Footnote 18] or
whether it must withstand a more rigid standard of review.
In
Harper v. Virginia Board of Elections, 383 U.
S. 663 (1966), the Court held that Virginia's imposition
of an annual poll tax not exceeding $1.50 on residents over the age
of 21 was a denial of equal protection. Subjecting the Virginia
poll tax to close scrutiny, the Court concluded that the placing of
even a minimal price on the exercise of the right to vote
constituted an invidious discrimination. The problem presented by
candidate filing fees is not the same, of course, and we must
determine whether the strict standard of review of the
Harper case should be applied.
The initial and direct impact of filing fees is felt by
aspirants for office, rather than voters, and the Court has not
heretofore attached such fundamental status to
Page 405 U. S. 143
candidacy as to invoke a rigorous standard of review. [
Footnote 19] However, the rights of
voters and the rights of candidates do not lend themselves to neat
separation; laws that affect candidates always have at least some
theoretical, correlative effect on voters. Of course, not every
limitation or incidental burden on the exercise of voting rights is
subject to a stringent standard of review.
McDonald v. Board of
Election, 394 U. S. 802
(1969). Texas does not place a condition on the exercise of the
right to vote, [
Footnote 20]
nor does it quantitatively dilute votes that have been cast.
[
Footnote 21] Rather, the
Texas system creates barriers to candidate access to the primary
ballot, thereby tending to limit the field of candidates from which
voters might choose. The existence of such barriers does not, of
itself, compel close scrutiny.
Compare Jenness v. Fortson,
403 U. S. 431
(1971),
with Williams v. Rhodes, 393 U. S.
23 (1968). In approaching candidate restrictions, it is
essential to examine in a realistic light the extent and nature of
their impact on voters.
Unlike a filing fee requirement that most candidates could be
expected to fulfill from their own resources, or at least through
modest contributions, the very size of the fees imposed under the
Texas system gives it a patently exclusionary character. Many
potential office seekers lacking both personal wealth and affluent
backers are, in every practical sense, precluded from seeking the
nomination of their chosen party, no matter how qualified they
might be and no matter how broad or enthusiastic their popular
support. The effect
Page 405 U. S. 144
of this exclusionary mechanism on voters is neither incidental
nor remote. Not only are voters substantially limited in their
choice of candidates, but also there is the obvious likelihood that
this limitation would fall more heavily on the less affluent
segment of the community, whose favorites may be unable to pay the
large costs required by the Texas system. To the extent that the
system requires candidates to rely on contributions from voters in
order to pay the assessments, a phenomenon that can hardly be rare
in light of the size of the fees, it tends to deny some voters the
opportunity to vote for a candidate of their choosing; at the same
time, it gives the affluent the power to place on the ballot their
own names or the names of persons they favor. Appellants do not
dispute that this is endemic to the system. This disparity in
voting power based on wealth cannot be described by reference to
discrete and precisely defined segments of the community as is
typical of inequities challenged under the Equal Protection Clause,
and there are doubtless some instances of candidates representing
the views of voters of modest means who are able to pay the
required fee. But we would ignore reality were we not to recognize
that this system falls with unequal weight on voters, as well as
candidates, according to their economic status.
Because the Texas filing fee scheme has a real and appreciable
impact on the exercise of the franchise, and because this impact is
related to the resources of the voters supporting a particular
candidate, we conclude, as in
Harper, that the laws must
be "closely scrutinized" and found reasonably necessary to the
accomplishment of legitimate state objectives in order to pass
constitutional muster.
(2)
Appellants contend that the filing fees required by the
challenged statutes are necessary both to regulate
Page 405 U. S. 145
the ballot in primary elections and to provide a means for
financing such elections.
The Court has recognized that a State has a legitimate interest
in regulating the number of candidates on the ballot.
Jenness
v. Fortson, 403 U.S. at
403 U. S. 442;
Williams v. Rhodes, 393 U.S. at
393 U. S. 32. In
so doing, the State understandably and properly seeks to prevent
the clogging of its election machinery, avoid voter confusion, and
assure that the winner is the choice of a majority, or at least a
strong plurality, of those voting, without the expense and burden
of runoff elections. [
Footnote
22] Although we have no way of gauging the number of candidates
who might enter primaries in Texas if access to the ballot were
unimpeded by the large filing fees in question here, we are bound
to respect the legitimate objectives of the State in avoiding
overcrowded ballots. Moreover, a State has an interest, if not a
duty, to protect the integrity of its political processes from
frivolous or fraudulent candidacies.
Jenness v. Fortson,
403 U.S. at
403 U. S.
442.
There is no escape from the conclusion that the imposition of
filing fees ranging as high as $8,900 tends to limit the number of
candidates entering the primaries. However, even under conventional
standards of review, a State cannot achieve its objectives by
totally arbitrary means; the criterion for differing treatment must
bear some relevance to the object of the legislation.
Morey v.
Doud, 354 U. S. 457,
354 U. S. 465
(1957);
Smith v. Cahoon, 283 U. S. 553,
283 U. S. 567
(1931). To say that the filing fee requirement tends to limit the
ballot to the more serious candidates is not enough. There
Page 405 U. S. 146
may well be some rational relationship between a candidate's
willingness to pay a filing fee and the seriousness with which he
takes his candidacy, [
Footnote
23] but the candidates in this case affirmatively alleged that
they were
unable, not simply
unwilling, to pay
the assessed fees, and there was no contrary evidence. It is
uncontested that the filing fees exclude legitimate as well as
frivolous candidates. And even assuming that every person paying
the large fees required by Texas law takes his own candidacy
seriously, that does not make him a "serious candidate" in the
popular sense. If the Texas fee requirement is intended to regulate
the ballot by weeding out spurious candidates, it is
extraordinarily ill-fitted to that goal; [
Footnote 24] other means to protect those valid
interests are available.
Instead of arguing for the reasonableness of the exclusion of
some candidates, appellants rely on the fact that the filing fee
requirement is applicable only to party primaries, and point out
that a candidate can gain a place on the ballot in the general
election without payment of fees by submitting a proper application
accompanied by a voter petition. [
Footnote 25] Apart from the fact that the primary
election may be more crucial than the general election in certain
parts of Texas, [
Footnote
26] we can hardly accept as reasonable an alternative that
requires
Page 405 U. S. 147
candidates and voters to abandon their party affiliations in
order to avoid the burdens of the filing fees imposed by state law.
Appellants have not demonstrated that their present filing fee
scheme is a necessary or reasonable tool for regulating the
ballot.
In addition to the State's purported interest in regulating the
ballot, the filing fees serve to relieve the State treasury of the
cost of conducting the primary elections, and this is a legitimate
state objective; in this limited sense, it cannot be said that the
fee system lacks a rational basis. [
Footnote 27] But, under the standard of review we
consider applicable to this case, there must be a showing of
necessity. Appellants strenuously urge that apportioning the cost
among the candidates is the only feasible means for financing the
primaries. They argue that, if the State must finance the
primaries, it will have to determine which political bodies are
"parties" so as to be entitled to state sponsorship for their
nominating process, and that this will result in new claims of
discrimination. Appellants seem to overlook the fact that a similar
distinction is presently embodied in Texas law, since only those
political parties whose gubernatorial candidate received 200,000 or
more votes in the last preceding general election are required to
conduct primary elections. [
Footnote 28] Moreover, the Court has recently upheld the
validity of a state law distinguishing between political parties on
the basis of success in prior elections.
Jenness v. Fortson,
supra. We are not persuaded that Texas would be faced with an
impossible task in distinguishing between political parties for the
purpose of financing primaries.
We also reject the theory that, since the candidates are
availing themselves of the primary machinery, it
Page 405 U. S. 148
is appropriate that they pay that share of the cost that they
have occasioned. The force of this argument is diluted by the fact
that candidates for offices requiring state-wide primaries are
generally assessed at a lower rate than candidates for local
office, although the state-wide primaries undoubtedly involve a
greater expense. [
Footnote
29] More importantly, the costs do not arise because candidates
decide to enter a primary or because the parties decide to conduct
one, but because the State has, as a matter of legislative choice,
directed that party primaries be held. The State has presumably
chosen this course more to benefit the voters than the
candidates.
Appellants seem to place reliance on the self-evident fact that,
if the State must assume the cost, the voters, as taxpayers, will
ultimately be burdened with the expense of the primaries. But it is
far too late to make out a case that the party primary is such a
lesser part of the democratic process that its cost must be shifted
away from the taxpayers generally. The financial burden for general
elections is carried by all taxpayers, and appellants have not
demonstrated a valid basis for distinguishing between these two
legitimate costs of the democratic process. It seems appropriate
that a primary system designed to give the voters some influence at
the nominating stage should spread the cost among all of the voters
in an attempt to distribute the influence without regard to wealth.
Viewing the myriad governmental functions supported from general
revenues, it is difficult to single out any of a higher order than
the conduct of elections at all levels to bring
Page 405 U. S. 149
forth those persons desired by their fellow citizens to govern.
Without making light of the State's interest in husbanding its
revenues, we fail to see such an element of necessity in the
State's present means of financing primaries as to justify the
resulting incursion on the prerogatives of voters.
(3)
Since the State has failed to establish the requisite
justification for this filing fee system, we hold that it results
in a denial of equal protection of the laws. It must be emphasized
that nothing herein is intended to cast doubt on the validity of
reasonable candidate filing fees or licensing fees in other
contexts. By requiring candidates to shoulder the costs of
conducting primary elections through filing fees and by providing
no reasonable alternative means of access to the ballot, the State
of Texas has erected a system that utilizes the criterion of
ability to pay as a condition to being on the ballot, thus
excluding some candidates otherwise qualified and denying an
undetermined number of voters the opportunity to vote for
candidates of their choice. These salient features of the Texas
system are critical to our determination of constitutional
invalidity.
Affirmed.
MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the
consideration or decision of this case.
[
Footnote 1]
See Arts. 13.07a, 13.08, 13.08a, 13.15, and 13.16 of
the Texas Election Code Ann. (Supp. 1970-1971).
[
Footnote 2]
Carter also failed to have his application notarized and to have
it accompanied by a statutory loyalty affidavit. Since appellees
Pate and Wischkaemper were in all respects eligible to be
candidates in the primary except for their failure to pay the
filing fees, Carter's participation in this appeal is superfluous,
and we need not decide whether the additional defects in his
application deprive him of standing to attack the constitutionality
of the filing fee system.
[
Footnote 3]
The order provided that their ultimate liability for the fees
would depend on the outcome of this action. Preliminary relief was
not granted to Carter, because of his noncompliance with requisites
for candidacy unrelated to the challenged filing fees.
See
n 2,
supra.
[
Footnote 4]
The specific provisions held unconstitutional are those listed
in
n 1,
supra.
[
Footnote 5]
Texas law does permit the names of independent candidates to
appear on the official ballot in the general election if a proper
application containing. a voter petition is submitted. The number
of eligible voters required to sign the petition varies from 1% to
5%, depending on the office sought. For district, county, and
precinct offices, candidates must obtain the signatures of 5% of
the eligible voters, with a ceiling of 500 signatures. No person
may sign the application of more than one person for the same
office, and no person who has voted in a primary may sign the
application of a candidate for an office for which a nomination was
made at such primary. Art. 13.50, Tex.Election Code Ann.
(1967).
No fees are assessed against candidates in general
elections.
[
Footnote 6]
Art. 13.09(b), Tex.Election Code Ann. (Supp. 1970-1971).
Write-in votes are permitted for the party offices of county
chairman and precinct chairman in the general primary, but not in
the run-off primary.
Ibid.
Former Art. 13.08c (repealed, Acts 1967, 60th Leg., p. 1932, c.
723, § 77) permitted write-in votes in primary elections and
provided that, if a write-in candidate in the first primary either
received a majority of the votes or was one of the two highest
vote-getters in a race in which no candidate received a majority of
the votes, he could not be the party's nominee in the general
election or participate in the run-off primary, unless and until he
paid the filing fee he would have been assessed had he originally
sought a place on the primary ballot.
[
Footnote 7]
Art. 13.08, Tex.Election Code Ann. (Supp. 1970-1971).
[
Footnote 8]
Ibid.
[
Footnote 9]
Art. 13.08a, Tex.Election Code Ann. (Supp. 1970-1971). This
provision is applicable to Members of Congress.
[
Footnote 10]
The $6,300 fee required of appellee Wischkaemper, for example,
amounts to 32% of the $19,700 annual salary for County Judge in
Tarrant County. Similarly, in the May 2, 1970, Democratic primary,
candidates for five county offices in Ward County were assessed
$6,250 for a filing fee; this fee represented 76.6% of the $8,160
annual salary for four of these offices; for the fifth office, that
of County Commissioner, it represented 99.7% of the annual salary
of $6,270.
[
Footnote 11]
Assessments in excess of $1,000 appear to be common in many
Texas counties, and assessments exceeding $5,000 are typical for
certain offices in several counties. Filing fees for judgeships
seem to run particularly high. Persons seeking to run in the May 2,
1970, Democratic primary for the office of District Judge in
Tarrant County were required to pay $8,900 in order to have their
names appear on the ballot.
It should be noted, however, that amounts not needed to finance
the primary are refunded to the candidates, and that, in some
counties, refunds tend to run as high as 50% or more of the
assessed filing fee.
[
Footnote 12]
Arts. 13.08a, 13.16 subd. 2, Tex.Election Code Ann. (Supp.
1970-1971):
Population of County Filing Fee
less than 650,000. . . . . . . . . . . $150
650,000 to 900,000 . . . . . . . . . . $600
900,000 to 1,000,000 . . . . . . . . . $300
1,000,000 or more. . . . . . . . . . . . $500
It is not clear from the face of the statute why candidates from
counties having populations between 650,000 and 900,000 must pay
more than candidates from counties of larger sizes.
An additional provision requires that candidates for State
Representative from districts encompassing either eight or nine
counties must pay $25 per county as a filing fee. Art. 13.08a,
Tex.Election Code Ann. (Supp. 1970-1971).
[
Footnote 13]
Art. 13.08a, Tex.Election Code Ann. (Supp. 1970-1971). There is
a fixed fee schedule if nomination is sought from a county with a
population of 650,000 or more:
Population of County Filing Fee
650,000 to 900,000 . . . . . . . . . . $1,000
900,000 to 1,000,000 . . . . . . . . . $300
1,000,000 or more. . . . . . . . . . . $1,000
"* If part of such county is joined to two or more counties to
constitute a senatorial district, the filing fee is fixed at
$250."
There is a ceiling on the filing fee if nomination is sought in
a senatorial district encompassing counties with less than 650,000
in population. Art. 13.16 subd. 1, Tex.Election Code Ann. (Supp.
1970-1971):
Filing Fee
Population of County per County
less than 5,000. . . . . . . . . . . . $1
5,000 to 10,000. . . . . . . . . . . . $5
10,000 to 40,000 . . . . . . . . . . . $10
40,000 to 125,000. . . . . . . . . . . $50
125,000 to 200,000 . . . . . . . . . . $75
200,000 to 650,000 . . . . . . . . . . $100
Persons seeking nomination in a senatorial district constituting
exactly two counties must pay a filing fee of $200.
[
Footnote 14]
Art. 13.15, Tex.Election Code Ann. (Supp. 1970-1971). Candidates
for Justice of the Court of Civil Appeals are also required to pay
their filing fees to the chairman of the state committee, at the
rate of 5% of one year's salary.
Ibid.
[
Footnote 15]
Art. 13.08(4), Tex.Election Code Ann. (Supp. 1970-1971).
[
Footnote 16]
Appellants ask the Court to reconsider the scope of
Smith v.
Allwright, 321 U. S. 649
(1944), in which the Court held that the action of the Democratic
Party of Texas in excluding Negroes from participation in party
primaries constituted "state action."
See also Terry v.
Adams, 345 U. S. 461
(1953);
cf. Nixon v. Condon, 286 U. S.
73 (1932). Appellants contend that not every aspect of a
party primary election must be considered "state action" cognizable
under the Fourteenth Amendment. But we are here concerned with the
constitutionality of a state law, rather than action by a political
party, and thus have no occasion to consider the scope of the
holding in
Smith v. Allwright, supra.
[
Footnote 17]
The Texas Legislature has enacted a "contingent, temporary law"
modifying the filing fee requirement involved in this case. C. 11,
H.B. 5, 62d Leg., 1st Called Sess. (1971). The new provisions allow
persons unable to pay the filing fees to have their names placed on
the ballot in primary elections if they submit a petition
"signed by qualified voters eligible to vote for the office for
which the candidate is running, equal in number to at least 10
percent of the entire vote cast for that party's candidate for
governor in the last preceding general election in the territory .
. . in which the candidate is running."
(Art. 13.08c(b).)
The Act provides that it is to go into effect only if
"(1) the Supreme Court of the United States does not dispose of
the appeal [in this case] . . . before January 1, 1972; or (2) the
Supreme Court of the United States affirms or refuses to review the
judgment of the district court in the aforesaid case. . . ."
(§ 7(b)). The Act expires of its own force on December 31, 1972,
at which time the prior law goes back into effect.
Although the Act has gone into effect due to the absence of
decision by the Court on this appeal before January 1, 1972, the
change in the law does not render this case moot. The effect of the
"contingent, temporary law" enacted by the Texas Legislature is to
suspend enforcement of the strict filing fee requirement during
calendar year 1972. Since enforcement of the filing fee requirement
under the prior law was permanently enjoined by the court below,
that injunction would continue to have force and effect after
December 31, 1972. Furthermore, there is a continuing controversy
with respect to appellees' obligation to pay the filing fees for
participation in the Democratic primary held on May 2, 1970. The
order of the District Court allowing appellees Pate and
Wischkaemper to run in the primary without payment of fees stated
that they would be liable for the fees if they did not ultimately
prevail in this action.
See n 3,
supra.
We take note of the fact that, in
Johnson v.
Luna, 338 F.
Supp. 355 (ND Tex.1972), the same three-judge court that issued
the injunction appealed from in this case, declared the new law
unconstitutional and enjoined its enforcement. Our attention is
confined to the case before us, and we intimate no view on the
merits of that controversy.
[
Footnote 18]
See Dandridge v. Williams, 397 U.
S. 471,
397 U. S. 485
(1970);
McGowan v. Maryland, 366 U.
S. 420,
366 U. S.
425-426 (1961).
[
Footnote 19]
Cf. Turner v. Fouche, 396 U. S. 346,
396 U. S. 362
(1970);
Snowden v. Hughes, 321 U. S.
1 (1944).
[
Footnote 20]
See Harper v. Virginia Board of Elections, 383 U.
S. 663 (1966);
Kramer v. Union Free School Dist. No.
1, 395 U. S. 621
(1969);
Cipriano v. City of Houma, 395 U.
S. 701 (1969).
[
Footnote 21]
See Reynolds v. Sims, 377 U. S. 533,
377 U. S. 562
(1964);
Wesberry v. Sanders, 376 U. S.
1 (1964).
[
Footnote 22]
The Texas Election Code provides that no person shall be
nominated at a primary election for any office unless he receives a
majority of the votes cast. In the event that no candidate receives
a majority, a runoff election is held between the two candidates
receiving the highest number of votes. Arts. 13.03, 13.07,
Tex.Election Code Ann. (1967).
[
Footnote 23]
Cf. Harper v. Virginia Board of Elections, 383 U.S. at
383 U. S.
684-685 (Harlan, J., dissenting).
[
Footnote 24]
Cf. Turner v. Fouche, 396 U.S. at
396 U. S.
364.
[
Footnote 25]
Appellants state that Texas requires only the signatures of 1%
of the eligible voters. Although this is true for offices voted for
state-wide, the candidates for local offices in this case would
have had to obtain the signatures of 5% of the eligible voters up
to a maximum of 500 signatures. Moreover, only those persons not
voting in the primary would have been eligible to sign a nominating
petition.
See n 5,
supra.
[
Footnote 26]
See Carter v. Dies, 321
F. Supp. 1358, 1363 (ND Tex.1970) (Thornberry, J.,
concurring).
[
Footnote 27]
Cf. Harper v. Virginia Board of Elections, 383 U.S. at
383 U. S. 674
(Black, J., dissenting).
[
Footnote 28]
Art. 13.02, Tex.Election Code Ann. (1967).
[
Footnote 29]
This would be a different case if the fees approximated the cost
of processing a candidate's application for a place on the ballot,
a cost resulting from the candidate's decision to enter a primary.
The term
filing fee has long been thought to cover the
cost of filing, that is, the cost of placing a particular document
on the public record.