An Ohio statute requires an independent candidate for President
to file a statement of candidacy and nominating petition in March
in order to appear on the general election ballot in November. On
April 24, 1980, petitioner Anderson announced that he was an
independent candidate for President. Thereafter, on May 16, 1980,
his supporters tendered a nominating petition and statement of
candidacy, satisfying the substantive requirements for ballot
eligibility, to respondent Ohio Secretary of State. Respondent
refused to accept the documents because they had not been filed
within the time required by the Ohio statute. Anderson and
petitioner voters then filed an action in Federal District Court,
challenging the constitutionality of the statute. The District
Court granted summary judgment for petitioners and ordered
respondent to place Anderson's name on the general election ballot,
holding that the statutory deadline was unconstitutional under the
First and Fourteenth Amendments. The Court of Appeals reversed,
holding that the early deadline served the State's interest in
voter education by giving voters a longer opportunity to see how
Presidential candidates withstand the close scrutiny of a political
campaign.
Held: Ohio's early filing deadline places an
unconstitutional burden on the voting and associational rights of
petitioner Anderson's supporters. Pp.
460 U. S.
786-806.
(a) In resolving constitutional challenges to a State's election
laws, a court must first consider the character and magnitude of
the asserted injury to the rights protected by the First and
Fourteenth Amendments that the plaintiff seeks to vindicate. It
must then identify and evaluate the interests asserted by the State
to justify the burden imposed by its rule. In passing judgment, the
Court must not only determine the legitimacy and strength of each
of these interests, it must also consider the extent to which those
interests make it necessary to burden the plaintiff's rights. Only
after weighing all these factors is the court in a position to
decide whether the challenged provision is unconstitutional. Pp.
460 U. S.
786-790.
Page 460 U. S. 781
(b) The Ohio filing deadline not only burdens the associational
rights of independent voters and candidates, it also places a
significant state-imposed restriction on a nationwide electoral
process. A burden that falls unequally on independent candidates or
on new or small political parties impinges, by its very nature, on
associational choices protected by the First Amendment, and
discriminates against those candidates and voters whose political
preferences lie outside the existing political parties. And in the
context of a Presidential election, state-imposed restrictions
implicate a uniquely important national interest, because the
President and Vice President are the only elected officials who
represent all the voters in the Nation, and the impact of the votes
cast in each State affects the votes cast in other States. Pp.
460 U. S.
790-795.
(c) None of the three interests that Ohio seeks to further by
its early filing deadline justifies that deadline. As to the
State's asserted interest in voter education, it is unrealistic in
the modern world to suggest that it takes more than seven months to
inform the electorate about the qualifications of a particular
candidate simply because he lacks a partisan label. Moreover, it is
not self-evident that the interest in voter education is served at
all by the early filing deadline. The State's asserted interest in
equal treatment for partisan and independent candidates is not
achieved by imposing the early filing deadline on both, since,
although a candidate participating in a primary election must
declare his candidacy on the same date as an independent, both the
burdens and benefits of the respective requirements are materially
different, and the reasons for early filing for a primary candidate
are inapplicable to independent candidates in the general election.
And the State's asserted interest in political stability amounts to
a desire to protect existing political parties from competition
generated by independent candidates who have previously been
affiliated with a party, an interest that conflicts with First
Amendment values. The Ohio deadline does not serve any state
interest "in maintaining the integrity of the various routes to the
ballot" for the Presidency, because Ohio's Presidential preference
primary does not serve to narrow the field for the general
election.
Storer v. Brown, 415 U.
S. 724, distinguished. The deadline is not drawn to
protect the parties from "intraparty feuding," and may actually
impair the State's interest in preserving party harmony. Pp.
460 U. S.
796-806.
664 F.2d 554, reversed.
STEVENS, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, MARSHALL, and BLACKMUN, JJ., joined.
REHNQUIST, J., filed a dissenting opinion, in which WHITE, POWELL,
and O'CONNOR, JJ., joined,
post, p.
460 U. S.
806.
Page 460 U. S. 782
JUSTICE STEVENS delivered the opinion of the Court.
On April 24, 1980, petitioner John Anderson announced that he
was an independent candidate for the office of President of the
United States. Thereafter, his supporters -- by gathering the
signatures of registered voters, filing required documents, and
submitting filing fees -- were able to meet the substantive
requirements for having his name placed on the ballot for the
general election in November, 1980, in all 50 States and the
District of Columbia. On April 24, however, it was already too late
for Anderson to qualify for a position on the ballot in Ohio and
certain other States because the statutory deadlines for filing a
statement of candidacy had already passed. The question presented
by this case is whether Ohio's early filing deadline placed an
unconstitutional burden on the voting and associational rights of
Anderson's supporters.
The facts are not in dispute. On May 16, 1980, Anderson's
supporters tendered a nominating petition containing approximately
14,500 signatures and a statement of candidacy to respondent
Celebrezze, the Ohio Secretary of State. These documents would have
entitled Anderson to a place on the ballot if they had been filed
on or before March 20, 1980. Respondent refused to accept the
petition solely because it had not been filed within the time
required by § 3513.25.7 of
Page 460 U. S. 783
the Ohio Revised Code. [
Footnote
1] Three days later, Anderson and three voters, two registered
in Ohio and one in New Jersey, commenced this action in the United
States District Court for the Southern District of Ohio,
challenging the constitutionality of Ohio's early filing deadline
for independent candidates. The District Court granted petitioners'
motion for summary judgment and ordered respondent to place
Anderson's name on the general election ballot.
499 F.
Supp. 121 (1980).
The District Court held that the statutory deadline was
unconstitutional on two grounds. It imposed an impermissible burden
on the First Amendment rights of Anderson and his Ohio supporters
and diluted the potential value of votes that might be cast for him
in other States. Moreover, by requiring an independent to declare
his candidacy in March without mandating comparable action by the
nominee of a political party, the State violated the Equal
Protection Clause of the Fourteenth Amendment. The District Court
noted that the State did not advance any administrative reasons for
the early deadline, and rejected the State's asserted justification
that the deadline promoted "political stability." Not only did that
interest have diminished importance in a Presidential
Page 460 U. S. 784
campaign; it also was adequately vindicated by another statute
prohibiting a defeated candidate in a party primary from running as
an independent. [
Footnote
2]
The Secretary of State promptly appealed and unsuccessfully
requested expedited review in both the Court of Appeals and this
Court, but apparently did not seek to stay the District Court's
order. [
Footnote 3] The
election was held while the appeal was pending. In Ohio, Anderson
received 254,472 votes, or 5.9 percent of the votes cast;
nationally, he received 5,720,060 votes or approximately 6.6
percent of the total. [
Footnote
4]
The Court of Appeals reversed. It first inferred that the
Court's summary affirmances in
Sweetenham v.
Rhodes, 318 F.
Supp. 1262 (SD Ohio 1970),
summarily aff'd, 409 U.S.
942 (1972), and
Pratt v. Begley, 352 F.
Supp. 328 (ED Ky.1970),
summarily aff'd, 409 U.S. 943
(1972), had implicitly sustained the validity of early filing
deadlines. Then, correctly recognizing the limited precedential
effect to be accorded summary dispositions, [
Footnote 5] the Court of Appeals independently
Page 460 U. S. 785
reached the same conclusion. It held that Ohio's early
deadline
"ensures that voters making the important choice of their next
president have the opportunity for a careful look at the
candidates, a chance to see how they withstand the close
Page 460 U. S. 786
scrutiny of a political campaign."
664 F.2d 554, 563 (CA6 1981).
In other litigation brought by Anderson challenging early filing
deadlines in Maine and Maryland, the Courts of Appeals for the
First and Fourth Circuits affirmed District Court judgments
ordering Anderson's name placed on the ballot.
See Anderson v.
Quinn, 495 F.
Supp. 730 (Me.),
affirmance order, 634 F.2d 616 (CA1
1980);
Anderson v. Morris, 500
F. Supp. 1095 (Md.),
aff'd, 636 F.2d 55 (CA4 1980).
[
Footnote 6] The conflict among
the Circuits on an important question of constitutional law led us
to grant certiorari. 456 U.S. 960 (1982). We now reverse.
I
After a date toward the end of March, even if intervening events
create unanticipated political opportunities, no independent
candidate may enter the Presidential race and seek to place his
name on the Ohio general election ballot. Thus, the direct impact
of Ohio's early filing deadline falls upon aspirants for office.
Nevertheless, as we have recognized,
"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."
Bullock v. Carter, 405 U. S. 134,
405 U. S. 143
(1972). Our primary concern is with the tendency of ballot access
restrictions "to limit the field of candidates from which voters
might choose." Therefore, "[i]n approaching candidate restrictions,
it is essential to examine in a realistic light the extent and
nature of their impact on voters."
Ibid.
The impact of candidate eligibility requirements on voters
implicates basic constitutional rights. [
Footnote 7] Writing for a unanimous
Page 460 U. S. 787
Court in
NAACP v. Alabama ex rel. Patterson,
357 U. S. 449,
357 U. S. 460
(1958), Justice Harlan stated that it
"is beyond debate that freedom to engage in association for the
advancement of beliefs and ideas is an inseparable aspect of the
'liberty' assured by the Due Process Clause of the Fourteenth
Amendment, which embraces freedom of speech."
In our first review of Ohio's electoral scheme,
Williams v.
Rhodes, 393 U. S. 23,
393 U. S. 30-31
(1968), this Court explained the interwoven strands of "liberty"
affected by ballot access restrictions:
"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."
As we have repeatedly recognized, voters can assert their
preferences only through candidates or parties or both.
"It is to be expected that a voter hopes to find on the ballot a
candidate who comes near to reflecting his policy preferences on
contemporary issues."
Lubin v. Panish, 415 U. S. 709,
415 U. S. 716
(1974). The right to vote is "heavily burdened" if that vote may be
cast only for major party candidates at a time when other parties
or other candidates are "clamoring for a place on the ballot."
Ibid.; Williams v. Rhodes, supra, at
393 U. S. 31.
The exclusion of candidates also burdens voters' freedom
Page 460 U. S. 788
of association, because an election campaign is an effective
platform for the expression of views on the issues of the day, and
a candidate serves as a rallying point for likeminded citizens.
[
Footnote 8]
Page 460 U. S. 789
Although these rights of voters are fundamental, not all
restrictions imposed by the States on candidates' eligibility for
the ballot impose constitutionally suspect burdens on voters'
rights to associate or to choose among candidates. We have
recognized that,
"as a practical matter, there must be a substantial regulation
of elections if they are to be fair and honest and if some sort of
order, rather than chaos, is to accompany the democratic
processes."
Storer v. Brown, 415 U. S. 724,
415 U. S. 730
(1974). To achieve these necessary objectives, States have enacted
comprehensive and sometimes complex election codes. Each provision
of these schemes, whether it governs the registration and
qualifications of voters, the selection and eligibility of
candidates, or the voting process itself, inevitably affects -- at
least to some degree -- the individual's right to vote and his
right to associate with others for political ends. Nevertheless,
the State's important regulatory interests are generally sufficient
to justify reasonable, nondiscriminatory restrictions. [
Footnote 9]
Page 460 U. S. 789
Constitutional challenges to specific provisions of a State's
election laws therefore cannot be resolved by any "litmus paper
test" that will separate valid from invalid restrictions.
Storer, supra, at
415 U. S. 730. Instead, a court must resolve such a
challenge by an analytical process that parallels its work in
ordinary litigation. It must first consider the character and
magnitude of the asserted injury to the rights protected by the
First and Fourteenth Amendments that the plaintiff seeks to
vindicate. It then must identify and evaluate the precise interests
put forward by the State as justifications for the burden imposed
by its rule. In passing judgment, the Court must not only determine
the legitimacy and strength of each of those interests, it also
must consider the extent to which those interests make it necessary
to burden the plaintiff's rights. Only after weighing all these
factors is the reviewing court in a position to decide whether the
challenged provision is unconstitutional.
See Williams v.
Rhodes, supra, at
393 U. S. 30-31;
Bullock v. Carter, 405 U.S. at
405 U. S.
142-143;
American Party of Texas v. White,
415 U. S. 767,
415 U. S.
780-781 (1974);
Illinois Elections Bd. v. Socialist
Workers Party, 440 U. S. 173,
440 U. S. 183
(1979). The results of this evaluation will not be automatic; as we
have recognized, there is "no substitute
Page 460 U. S. 790
for the hard judgments that must be made."
Storer v. Brown,
supra, at 730. [
Footnote
10]
II
An early filing deadline may have a substantial impact on
independent-minded voters. In election campaigns, particularly
those which are national in scope, the candidates and the issues
simply do not remain static over time. Various candidates rise and
fall in popularity; domestic and international developments bring
new issues to center stage, and may affect voters' assessments of
national problems. Such developments will certainly affect the
strategies of candidates who have already entered the race; they
may also create opportunities for new candidacies.
See A.
Bickel, Reform and Continuity 87-89 (1971). Yet Ohio's filing
deadline prevents persons who wish to be independent candidates
from entering the significant political arena established in the
State by a Presidential election campaign -- and creating new
political coalitions of Ohio voters -- at any time after mid to
late March. [
Footnote 11] At
this point, developments in campaigns for
Page 460 U. S. 791
the major party nominations have only begun, and the major
parties will not adopt their nominees and platforms for another
five months. Candidates and supporters within the major parties
thus have the political advantage of continued flexibility; for
independents, the inflexibility imposed by the March filing
deadline is a correlative disadvantage because of the competitive
nature of the electoral process.
If the State's filing deadline were later in the year, a newly
emergent independent candidate could serve as the focal point for a
grouping of Ohio voters who decide, after mid-March, that they are
dissatisfied with the choices within the two major parties. As we
recognized in
Williams v. Rhodes, 393 U.S. at
393 U. S.
33,
"[s]ince the principal policies of the major parties change to
some extent from year to year, and since the identity of the likely
major party nominees may not be known until shortly before the
election, this disaffected 'group' will rarely, if ever, be a
cohesive or identifiable group until a few months before the
election. [
Footnote 12]"
Indeed, several
Page 460 U. S. 792
important third-party candidacies in American history were
launched after the two major parties staked out their positions and
selected their nominees at national conventions during the summer.
[
Footnote 13] But under §
3513.25.7, a late-emerging Presidential candidate outside the major
parties, whose positions on the issues could command widespread
community support, is excluded from the Ohio general election
ballot. The "Ohio system thus denies the
disaffected' not only
a choice of leadership, but a choice on the issues as well."
Williams v. Rhodes, supra, at 393 U. S.
33.
Not only does the challenged Ohio statute totally exclude any
candidate who makes the decision to run for President as an
independent after the March deadline, it also burdens the
signature-gathering efforts of independents who decide to run in
time to meet the deadline. When the primary campaigns are far in
the future and the election itself is even more remote, the
obstacles facing an independent candidate's organizing efforts are
compounded. Volunteers are more difficult to recruit and retain,
media publicity and campaign contributions are more difficult to
secure, and voters are less interested in the campaign. [
Footnote 14]
It is clear, then, that the March filing deadline places a
particular burden on an identifiable segment of Ohio's
independent-minded voters.
See supra,at
460 U. S. 791.
As our cases have held,
Page 460 U. S. 793
it is especially difficult for the State to justify a
restriction that limits political participation by an identifiable
political group whose members share a particular viewpoint,
associational preference, or economic status. [
Footnote 15]
"Our ballot access cases . . . focus on the degree to which the
challenged restrictions operate as a mechanism to exclude certain
classes of candidates from the electoral process. The inquiry is
whether the challenged restriction unfairly or unnecessarily
burdens the 'availability of political opportunity.'"
Clements v. Fashing, 457 U. S. 957,
457 U. S. 964
(1982) (plurality opinion), quoting
Lubin v. Panish, 415
U.S. at
415 U. S. 716.
[
Footnote 16]
A burden that falls unequally on new or small political parties
or on independent candidates impinges, by its very nature, on
associational choices protected by the First Amend
Page 460 U. S. 794
ment. It discriminates against those candidates and -- of
particular importance -- against those voters whose political
preferences lie outside the existing political parties.
Clements v. Fashing, supra, at
457 U. S.
964-965 (plurality opinion). By limiting the
opportunities of independent-minded voters to associate in the
electoral arena to enhance their political effectiveness as a
group, such restrictions threaten to reduce diversity and
competition in the marketplace of ideas. Historically, political
figures outside the two major parties have been fertile sources of
new ideas and new programs; many of their challenges to the
status quo have, in time, made their way into the
political mainstream.
Illinois Elections Bd. v. Socialist
Workers Party, 440 U.S. at
440 U. S. 186;
Sweezy v. New Hampshire, 354 U. S. 234,
354 U. S.
250-251 (1957) (opinion of Warren, C.J.). [
Footnote 17] In short, the primary
values protected by the First Amendment -- "a profound national
commitment to the principle that debate on public issues should be
uninhibited, robust, and wide-open,"
New York Times Co. v.
Sullivan, 376 U. S. 254,
376 U. S. 270
(1964) -- are served when election campaigns are not monopolized by
the existing political parties. Furthermore, in the context of a
Presidential election, state-imposed restrictions [
Footnote 18] implicate a uniquely
important
Page 460 U. S. 795
national interest. For the President and the Vice President of
the United States are the only elected officials who represent all
the voters in the Nation. Moreover, the impact of the votes cast in
each State is affected by the votes cast for the various candidates
in other States. [
Footnote
19] Thus, in a Presidential election, a State's enforcement of
more stringent ballot access requirements, including filing
deadlines, has an impact beyond its own borders. [
Footnote 20] Similarly, the State has a
less important interest in regulating Presidential elections than
state-wide or local elections, because the outcome of the former
will be largely determined by voters beyond the State's boundaries.
This Court, striking down a state statute unduly restricting the
choices made by a major party's Presidential nominating convention,
observed that such conventions serve
"the pervasive national interest in the selection of candidates
for national office, and this national interest is greater than any
interest of an individual State."
Cousins v. Wigoda, 419 U. S. 477,
419 U. S. 490
(1975). The Ohio filing deadline challenged in this case does more
than burden the associational rights of independent voters and
candidates. It places a significant state-imposed restriction on a
nationwide electoral process.
Page 460 U. S. 796
III
The State identifies three separate interests that it seeks to
further by its early filing deadline for independent Presidential
candidates: voter education, equal treatment for partisan and
independent candidates, and political stability. We now examine the
legitimacy of these interests and the extent to which the March
filing deadline serves them.
Voter Education
There can be no question about the legitimacy of the State's
interest in fostering informed and educated expressions of the
popular will in a general election. Moreover, the Court of Appeals
correctly identified that interest as one of the concerns that
motivated the Framers' decision not to provide for direct popular
election of the President. [
Footnote 21] We are persuaded, however, that the State's
important and legitimate interest in voter education does not
justify the specific restriction on participation in a Presidential
election that is at issue in this case.
The passage of time since the Constitutional Convention in 1787
has brought about two changes that are relevant to the
reasonableness of Ohio's statutory requirement that independents
formally declare their candidacy at least seven months in advance
of a general election. First, although it took days
Page 460 U. S. 797
and often weeks for even the most rudimentary information about
important events to be transmitted from one part of the country to
another in 1787, [
Footnote
22] today even trivial details about national candidates are
instantaneously communicated nationwide in both verbal and visual
form. Second, although literacy was far from universal in
18th-century America, [
Footnote
23] today the vast majority of the electorate not only is
literate but also is informed on a day-to-day basis about events
and issues that affect election choices and about the ever-changing
popularity of individual candidates. In the modern world, it is
somewhat unrealistic to suggest that it takes more than seven
months to inform the electorate about the qualifications of a
particular candidate simply because he lacks a partisan label.
Our cases reflect a greater faith in the ability of individual
voters to inform themselves about campaign issues. In
Dunn v.
Blumstein, 405 U. S. 330
(1972), the Court considered the validity of a Tennessee statute
requiring residence in the State for one year and in the county for
three months as a prerequisite for registration to vote. The Court
held the statute unconstitutional, specifically rejecting the
argument that the requirements were justified by the State's
interest in voter education.
"Given modern communications, and given the clear indication
that campaign spending and voter education occur largely during the
month before an election, the State cannot seriously maintain that
it is 'necessary' to reside for a year in the State and three
months in the county in order to be knowledgeable about
congressional, state, or even purely local elections."
Id. at
405 U. S. 358
(footnotes omitted).
Page 460 U. S. 798
This reasoning applies with even greater force to a Presidential
election, which receives more intense publicity. [
Footnote 24] Nor are we persuaded by the
State's assertion that, unless a candidate actually files a formal
declaration of candidacy in Ohio by the March deadline, Ohio voters
will not realize that they should pay attention to his candidacy.
Brief for Respondent 38. The validity of this asserted interest is
undermined by the State's willingness to place major party nominees
on the November ballot even if they never campaigned in Ohio.
It is also by no means self-evident that the interest in voter
education is served at all by a requirement that independent
candidates must declare their candidacy before the end of March in
order to be eligible for a place on the ballot in November. Had the
requirement been enforced in Ohio, petitioner Anderson might well
have determined that it would be futile for him to allocate any of
his time and money to campaigning in that State. The Ohio
electorate might thereby have been denied whatever benefits his
participation in local debates could have contributed to an
understanding of the issues. A State's claim that it is enhancing
the ability of its citizenry to make wise decisions by restricting
the flow of information to them must be viewed with some
skepticism. As we observed in another First Amendment context, it
is often true "that the best means to that end is to open the
channels of communication, rather than to close them."
Virginia
Pharmacy Board v. Virginia Citizens Consumer Council, Inc.,
425 U. S. 748,
425 U. S. 770
(1976). [
Footnote 25]
Page 460 U. S. 799
Equal Treatment
We also find no merit in the State's claim that the early filing
deadline serves the interest of treating all candidates alike.
Brief for Respondent 33. It is true that a candidate participating
in a primary election must declare his candidacy on the same date
as an independent. But both the burdens and the benefits of the
respective requirements are materially different, and the reasons
for requiring early filing for a primary candidate are inapplicable
to independent candidates in the general election.
The consequences of failing to meet the statutory deadline are
entirely different for party primary participants and independents.
The name of the nominees of the Democratic and Republican Parties
will appear on the Ohio ballot in November even if they did not
decide to run until after Ohio's March deadline had passed, but the
independent is simply denied a position on the ballot if he waits
too long. [
Footnote 26]
Thus, under Ohio's scheme, the major parties may include all events
preceding their national conventions in the calculus that produces
their respective nominees and campaign platforms, but
Page 460 U. S. 800
the independent's judgment must be based on a history that ends
in March. [
Footnote 27]
The early filing deadline for a candidate in a party's primary
election is adequately justified by administrative concerns.
Seventy-five days appears to be a reasonable time for processing
the documents submitted by candidates and preparing the ballot. 499
F. Supp. at 134. The primary date itself must be set sufficiently
in advance of the general election; furthermore, a Presidential
preference primary must precede the national convention, which is
regularly held during the summer. Finally, the successful
participant in a party primary generally acquires the automatic
support of an experienced political organization; in the
Presidential contest, he obtains the support of convention
delegates.
Neither the administrative justification nor the benefit of an
early filing deadline is applicable to an independent candidate.
Ohio does not suggest that the March deadline is necessary to allow
petition signatures to be counted and verified or to permit
November general election ballots to be printed. [
Footnote 28] In addition, the early
deadline does not correspond
Page 460 U. S. 801
to a potential benefit for the independent, as it does for the
party candidate. After filing his statement of candidacy, the
independent does not participate in a structured intraparty contest
to determine who will receive organizational support; he must
develop support by other means. In short, "equal treatment" of
partisan and independent candidates simply is not achieved by
imposing the March filing deadline on both. As we have written,
"[s]ometimes the grossest discrimination can lie in treating things
that are different as though they were exactly alike."
Jenness
v. Fortson, 403 U. S. 431,
403 U. S. 442
(1971).
Political Stability
Although the Court of Appeals did not discuss the State's
interest in political stability, that was the primary justification
advanced by respondent in the District Court, 499 F. Supp. at 134,
and it is again asserted in this Court. Respondent's brief explains
that the State has a substantial interest in protecting the two
major political parties from "damaging intraparty feuding." Brief
for Respondent 41. According to respondent, a candidate's decision
to abandon efforts to win the party primary and to run as an
independent "can be very damaging to state political party
structure." Anderson's decision to run as an independent,
respondent argues, threatened to "splinter" the Ohio Republican
Party "by drawing away its activists to work in his
independent' campaign." Id. at 37; see id. at
44.
Ohio's asserted interest in political stability amounts to a
desire to protect existing political parties from competition--
competition for campaign workers, voter support, and other campaign
resources -- generated by independent candidates who have
previously been affiliated with the party. [
Footnote 29] Our
Page 460 U. S. 802
evaluation of this interest is guided by two of our prior cases,
Williams v. Rhodes and
Storer v. Brown.
In
Williams v. Rhodes, we squarely held that protecting
the Republican and Democratic Parties from external competition
cannot justify the virtual exclusion of other political aspirants
from the political arena. Addressing Ohio's claim that it "may
validly promote a two-party system in order to encourage compromise
and political stability," we wrote:
"The fact is, however, that the Ohio system does not merely
favor a 'two-party system;' it favors two particular parties -- the
Republicans and the Democrats -- and in effect tends to give them a
complete monopoly. There is, of course, no reason why two parties
should retain a permanent monopoly on the right to have people vote
for or against them. Competition in ideas and governmental policies
is at the core of our electoral process and of the First Amendment
freedoms. New parties struggling for their place must have the time
and opportunity to organize in order to meet reasonable
requirements for ballot position, just as the old parties have had
in the past."
Williams v. Rhodes, 393 U.S. at
393 U. S. 31-32.
Thus, in
Williams v. Rhodes, we concluded that First
Amendment values outweighed the State's interest in protecting the
two major political parties.
On the other hand, in
Storer v. Brown, we upheld two
California statutory provisions that restricted access by
independent
Page 460 U. S. 803
candidates to the general election ballot. Under California law,
a person could not run as an independent in November if he had been
defeated in a party primary that year or if he had been registered
with a political party within one year prior to that year's primary
election. We stated that
"California apparently believes with the Founding Fathers that
splintered parties and unrestrained factionalism may do significant
damage to the fabric of government,"
and that destruction of "the political stability of the system
of the State" could have "profound consequences for the entire
citizenry." 415 U.S. at
415 U. S. 736.
Further, we approved the State's goals of discouraging "independent
candidacies prompted by short-range political goals, pique, or
personal quarrel."
Id. at
415 U. S.
735.
Thus, in
Storer, we recognized the legitimacy of the
State's interest in preventing "splintered parties and unrestrained
factionalism." But we did not suggest that a political party could
invoke the powers of the State to assure monolithic control over
its own members and supporters. [
Footnote 30] Political competition that draws resources
away from the major parties cannot, for that reason alone, be
condemned as "unrestrained factionalism." Instead, in
Storer, we examined the two challenged provisions in the
context of California's electoral system. By requiring a candidate
to remain in the intraparty competition once the disaffiliation
deadline had passed, and by giving conclusive effect to the
winnowing process performed by party members in the primary
election, the challenged provisions were an essential part of "a
general state policy aimed at maintaining the integrity of the
various routes to the ballot." Moreover, we pointed out that
the
Page 460 U. S. 804
policy "involves no discrimination against independents."
Storer, supra, at
415 U. S. 733.
Ohio's challenged restriction is substantially different from
the California provisions upheld in
Storer. As we have
noted, the early filing deadline does discriminate against
independents. And the deadline is neither a "sore loser" provision
nor a disaffiliation statute. [
Footnote 31] Furthermore, it is important to recognize
that
Storer upheld the State's interest in avoiding
political fragmentation in the context of elections wholly within
the boundaries of California. [
Footnote 32] The State's interest in regulating a
nationwide Presidential election is not nearly as strong; no State
could singlehandedly assure "political stability" in the
Presidential context. The Ohio deadline does not serve any state
interest in "maintaining the integrity of the various routes to the
ballot" for the Presidency, because Ohio's Presidential preference
primary does not serve to narrow the field for the general
election. A major party candidate who loses the Ohio primary, or
who does not even run in Ohio, may nonetheless appear on the
November general election ballot as the party's nominee. In
addition, the national scope of the competition for delegates at
the Presidential nominating conventions assures that "intraparty
feuding" will continue until August.
Page 460 U. S. 805
More generally, the early filing deadline is not precisely drawn
to protect the parties from "intraparty feuding," whatever
legitimacy that state goal may have in a Presidential election. If
the deadline is designed to keep intraparty competition within the
party structure, its coverage is both too broad and too narrow. It
is true that, in this case, § 3513.25.7 was applied to a candidate
who had previously competed in party primaries and then sought to
run as an independent. But the early deadline applies broadly to
independent candidates who have not been affiliated in the recent
past with any political party. On the other hand, as long as the
decision to run is made before the March deadline, Ohio does not
prohibit independent candidacies by persons formerly affiliated
with a political party, or currently participating in intraparty
competition in other States -- regardless of the effect on the
political party structure.
Moreover, the early deadline for filing as an independent may
actually impair the State's interest in preserving party harmony.
As Professor Bickel perceptively observed:
"The characteristic American third party, then, consists of a
group of people who have tried to exert influence within one of the
major parties, have failed, and later decide to work on the
outside. States in which there is an early qualifying date tend to
force such groups to create minor parties without first attempting
to influence the course taken by a major one. For a dissident group
is put to the choice of foregoing major party primary and other
prenomination activity by organizing separately early on in an
election year, or losing all opportunity for action as a third
party later."
Bickel,
supra, n
11, at 87-88. The same analysis, of course, is applicable to a
"dissident group" that coalesces around an independent candidate,
rather than attempting to form a new political party.
We conclude that Ohio's March filing deadline for independent
candidates for the office of President of the United
Page 460 U. S. 806
States cannot be justified by the State's asserted interest in
protecting political stability.
"For even when pursuing a legitimate interest, a State may not
choose means that unnecessarily restrict constitutionally protected
liberty.
Dunn v. Blumstein, 405 U.S. at
405 U. S.
343. 'Precision of regulation must be the touchstone in
an area so closely touching our most precious freedoms.'
NAACP
v. Button, 371 U.S. [415],
371 U. S.
438 [(1963)]. If the State has open to it a less drastic
way of satisfying its legitimate interests, it may not choose a
legislative scheme that broadly stifles the exercise of fundamental
personal liberties."
Kusper v. Pontikes, 414 U. S. 51,
414 U. S. 58-59
(1973).
IV
We began our inquiry by noting that our primary concern is not
the interest of candidate Anderson, but rather, the interests of
the voters who chose to associate together to express their support
for Anderson's candidacy and the views he espoused. Under any
realistic appraisal, the "extent and nature" of the burdens Ohio
has placed on the voters' freedom of choice and freedom of
association, in an election of nationwide importance,
unquestionably outweigh the State's minimal interest in imposing a
March deadline.
The judgment of the Court of Appeals is
Reversed.
[
Footnote 1]
Section 3513.25.7 provides, in pertinent part:
"Each person desiring to become an independent candidate for an
office for which candidates may be nominated at a primary election,
except persons desiring to become independent joint candidates for
the offices of governor and lieutenant governor, shall file no
later than four p.m. of the seventy-fifth day before the day of the
primary election immediately preceding the general election at
which such candidacy is to be voted for by the voters, a statement
of candidacy and nominating petition as provided in section
3513.261 [3513.26.1] of the Revised Code. . . ."
Ohio Rev.Code Ann. § 3513.25.7 (Supp.1982). The Code sets the
first Tuesday after the first Monday in June as the date of the
primary election, § 3501.01(E), a date that fell on June 3, 1980.
Thus the filing deadline for independent candidates was March 20,
1980, a date 229 days in advance of the general election. Section
3513.26.7(A) requires independent candidates in state-wide
elections, including Presidential primaries, to submit nominating
petitions signed by no less than 5,000 and no more than 15,000
qualified voters.
[
Footnote 2]
Anderson's name had been entered in the Republican primary in
Ohio and 26 other States before he made his decision to run as an
independent, and he actually competed unsuccessfully in nine
Republican primaries. Nevertheless, the parties agree that his
timely withdrawal from the Ohio primary avoided the application of
the State's "sore loser" statute, Ohio Rev.Code Ann. § 3513.04
(Supp.1982), which disqualifies a candidate who ran unsuccessfully
in a party primary from running as an independent in the general
election.
See 499 F.
Supp. 121, 135, 140 (SD Ohio 1980); 664 F.2d 554, 556, n. 3
(CA6 1981).
[
Footnote 3]
After the Court of Appeals denied a motion for expedited appeal,
respondent filed a petition for a writ of certiorari before
judgment in this Court, together with a motion to expedite
consideration of the petition. The motion and the petition were
both denied before the election in November, 1980. 448 U.S. 914 and
918 (1980). Even though the 1980 election is over, the case is not
moot.
See Storer v. Brown, 415 U.
S. 724,
415 U. S. 737,
n. 8 (1974).
[
Footnote 4]
14 America Votes, A Handbook of Contemporary American Election
Statistics 18-19, 312, 317 (1981).
[
Footnote 5]
The Court of Appeals quite properly concluded that our summary
affirmances in
Sweetenham v. Gilligan and
Pratt v.
Begley were "a rather slender reed" on which to rest its
decision. 664 F.2d at 560. We have often recognized that the
precedential effect of a summary affirmance extends no further than
"the precise issues presented and necessarily decided by those
actions." A summary disposition affirms only the judgment of the
court below, and no more may be read into our action than was
essential to sustain that judgment.
Illinois Elections Bd. v.
Socialist Workers Party, 440 U. S. 173,
440 U. S.
182-183 (1979);
Mandel v. Bradley, 432 U.
S. 173,
432 U. S. 176
(1977);
see Fusari v. Steinerg, 419 U.
S. 379,
419 U. S.
391-392 (1975) (BURGER, C.J., concurring). Neither
Sweetenham nor
Pratt involved state-imposed
filing deadlines for Presidential candidates.
See
Juris.Statement in
Pratt v. Begley, O.T. 1972, No. 70-48,
p. 4 (independent candidates for U.S. House of Representatives);
Juris.Statement in
Sweetenham v. Rhodes, O.T. 1972, No.
70-15, p. 5 (independent candidates for Governor of Ohio and U.S.
House of Representatives). Further,
Sweetenham arose on
review of the District Court's refusal to grant injunctive relief
placing appellants on the ballot. The court relied at least in part
on appellants' failure to take steps to become candidates before
the primary, a date 90 days after the challenged filing deadline,
or indeed to tender nominating petitions at any time before filing
suit.
See id. at 30. In
Pratt, the District Court
dismissed a complaint seeking declaratory as well as injunctive
relief, concluding that the early filing deadline was reasonable,
but it could have refused to place appellants on the ballot on the
equitable ground that they had not submitted nominating petitions
until more than two and a half months after the party nominees were
chosen in the primary. 352 F. Supp. at 329.
As the Court of Appeals acknowledged, our remand in
Mandel
v. Bradley, supra, does not control this case. Plaintiff, who
had sought to run as an independent candidate for United States
Senator from Maryland, challenged a Maryland code provision
imposing both an early filing deadline and a numerical signature
requirement. Neither of the parties addressed the constitutionality
of the filing date standing alone. The District Court improperly
relied on a prior summary affirmance by this Court to strike down
the restriction, and failed to undertake an independent examination
of the merits. We remanded for factual findings.
Id. at
177-178. On remand, the District Court found that the early filing
deadline imposed unconstitutional burdens on the plaintiff.
Bradley v. Mandel, 449 F.
Supp. 983, 986-989 (Md.1978).
[
Footnote 6]
Anderson also prevailed on First Amendment and Equal Protection
Clause grounds in
Anderson v. Hooper, 498 F.
Supp. 898,
905 (NM
1980), and on state law grounds in
Greaves v.
Mills, 497 F.
Supp. 283 (ED Ky.1980),
rev'd in part on other
grounds, 664 F.2d 600 (CA6 1981).
[
Footnote 7]
In this case, we base our conclusions directly on the First and
Fourteenth Amendments, and do not engage in a separate Equal
Protection Clause analysis. We rely, however, on the analysis in a
number of our prior election cases resting on the Equal Protection
Clause of the Fourteenth Amendment. These cases, applying the
"fundamental rights" strand of equal protection analysis, have
identified the First and Fourteenth Amendment rights implicated by
restrictions on the eligibility of voters and candidates, and have
considered the degree to which the State's restrictions further
legitimate state interests.
See, e.g., Williams v. Rhodes,
393 U. S. 23
(1968);
Bullock v. Carter, 405 U.
S. 134 (1972);
Lubin v. Panish, 415 U.
S. 709 (1974);
Illinois Elections Bd. v. Socialist
Workers Party, supra.
[
Footnote 8]
See Williams v. Rhodes, 393 U.S. at
393 U. S. 31
("The right to form a party for the advancement of political goals
means little if a party can be kept off the election ballot, and
thus denied an equal opportunity to win votes");
id. at
393 U. S. 41
(Harlan, J., concurring in result) ("[B]y denying the appellants
any opportunity to participate in the procedure by which the
President is selected, the State has eliminated the basic incentive
that all political parties have for conducting such activities,
thereby depriving appellants of much of the substance, if not the
form, of their protected rights");
Illinois Elections Bd. v.
Socialist Workers Party, 440 U.S. at
440 U. S. 186
("[A]n election campaign is a means of disseminating ideas as well
as attaining political office. . . . Overbroad restrictions on
ballot access jeopardize this form of political expression").
[
Footnote 9]
We have upheld generally applicable and evenhanded restrictions
that protect the integrity and reliability of the electoral process
itself. The State has the undoubted right to require candidates to
make a preliminary showing of substantial support in order to
qualify for a place on the ballot, because it is both wasteful and
confusing to encumber the ballot with the names of frivolous
candidates.
Jenness v. Fortson, 403 U.
S. 431 (1971);
American Party of Texas v.
White, 415 U. S. 767
(1974);
cf. Storer v. Brown, 415 U.S. at
415 U. S.
738-746;
Mandel v. Bradley, 432 U.
S. 173 (1977) (remand to assess burden placed by State's
signature-gathering requirements on independent candidates). The
State also has the right to prevent distortion of the electoral
process by the device of "party raiding," the organized switching
of blocs of voters from one party to another in order to manipulate
the outcome of the other party's primary election.
Rosario v.
Rockefeller, 410 U. S. 752
(1973);
cf. Kusper v. Pontikes, 414 U. S.
51,
414 U. S. 59-6
(1973).
We have also upheld restrictions on candidate eligibility that
serve legitimate state goals which are unrelated to First Amendment
values.
See Clements v. Fashing, 457 U.
S. 957 (1982) (incumbent Justice of the Peace may not
seek election to state legislature; persons holding specified state
and county offices are deemed automatically to resign from present
office if they run for another elective office).
[
Footnote 10]
See American Party of Texas v. White, supra, at
415 U. S.
780-781;
Illinois Elections Bd. v. Socialist Workers
Party, supra, at
440 U. S.
188-189 (BLACKMUN, J., concurring);
cf. Mississippi
University for Women v. Hogan, 458 U.
S. 718,
458 U. S. 724
(1982).
[
Footnote 11]
As Professor Bickel has written:
"Never has it been as evident as in 1968 that unforeseen
occurrences in the early portion of an election year can
fundamentally affect all political expectations. For administrative
reasons, there has to be a cutoff date sometime, but there is more
than a little of the capricious in laws that force a commitment to
act (within or without the major parties) in at least two states
before such an upheaval as President Johnson's withdrawal on March
31, 1968, and in many states before important primaries, not to
mention such an event as the assassination of Robert F. Kennedy on
June 5, 1968."
A. Bickel, Reform and Continuity 88 (1971).
Indeed, because it takes time for an independent Presidential
candidate and his supporters to gather the requisite 5,000
signatures on nominating petitions, the independent must decide to
run well in advance of the March filing deadline. In contrast, Ohio
law provides for the automatic inclusion of the Presidential
nominees of the major parties on the general election ballot, Ohio
Rev.Code Ann. § 3505.10 (Supp.1982), even if they have never filed
a statement of candidacy in Ohio. Their identities are not
established until after the major party conventions in August.
[
Footnote 12]
Five individuals were able to qualify as independent
Presidential candidates in Ohio in 1980. 499 F. Supp. at 143-144.
But their inclusion on the ballot does not negate the burden
imposed on the associational rights of independent-minded voters.
These candidates -- Gus Hall of the Communist Party, Richard
Congress of the Socialist Workers Party, Deirdre Griswold of the
Workers World Party, Ed Clark of the Libertarian Party, and Barry
Commoner of the Citizen's Party -- represented ideologically
committed minor parties which did not proceed through the "minor
party" provisions of the Ohio Election Code. Their candidacies
corresponded to the protected First Amendment interests of some
Ohio voters. But, unlike Anderson's, they were unlikely adequately
to satisfy the voting and associational interests of voters whose
independent political leanings crystallized as a result of
developments in the course of the primary campaigns.
Cf.
Developments in the Law -- Elections, 88 Harv.L.Rev. 1111, 1143, n.
130 (1975) ("From the standpoint of potential supporters, minor
parties and independent candidates differ in that the latter are
free from ties and obligations to party organizations, and support
for them is not so total a commitment of political allegiance
because it does not require renunciation of major party
affiliation").
Our focus on the associational rights of independent-minded
voters distinguishes the burden imposed by Ohio's early filing
deadline from that created by the California disaffiliation
provision upheld in
Storer v. Brown, 415 U.
S. 724 (1974). Although a disaffiliation provision may
preclude such voters from supporting a particular ineligible
candidate, they remain free to support and promote other candidates
who satisfy the State's disaffiliation requirements.
[
Footnote 13]
See generally App. to Brief for American Civil
Liberties Union as
Amicus Curiae 10a-12a; Bickel,
supra, n 11, at
87.
[
Footnote 14]
See Bradley v. Mandel, 449 F. Supp. at 986-987
(findings of fact of three-judge District Court on remand from this
Court).
[
Footnote 15]
In
Bullock v. Carter, 405 U.S. at
405 U. S. 144,
the Court noted that the disparity in voting power created by high
candidate filing fees
"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."
Indeed, the impact fell on an undetermined number of voters.
Id. at
405 U. S. 149.
Yet the filing fees were unconstitutional because of 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."
Id. at
405 U. S.
144.
See also L. Tribe, American Constitutional Law 774-775
(1978). As Professor Tribe explains, although candidate eligibility
requirements may exclude particular candidates, it remains possible
that an eligible candidate will "adequately reflect the perspective
of those who might have voted for a candidate who has been
excluded."
Id. at 774, n. 2. But courts quite properly
"have more carefully appraised the fairness and openness of laws
that determine which political groups can place any candidate of
their choice on the ballot."
Id. at 774.
Cf. Developments in the Law --
Elections,
supra, n
12, at 1218, and n. 5.
[
Footnote 16]
In addition, because the interests of minor parties and
independent candidates are not well represented in state
legislatures, the risk that the First Amendment rights of those
groups will be ignored in legislative decisionmaking may warrant
more careful judicial scrutiny.
Id. at 1136, n. 87;
see generally United States v. Carolene Products Co.,
304 U. S. 144,
304 U. S. 152,
n. 4 (1938); J. Ely, Democracy and Distrust: A Theory of Judicial
Review 73-88 (1980).
[
Footnote 17]
See generally V. Key, Politics, Parties, and Pressure
Groups 278-303 (3d ed.1952). As Professor Bickel has observed,
"Again and again, minor parties have led from a flank, while the
major parties still followed opinion down the middle. In time, the
middle has moved, and one of the major parties or both occupy the
ground reconnoitered by the minor party; . . . . "
"[A]s an outlet for frustration, often as a creative force and a
sort of conscience, as an ideological governor to keep major
parties from speeding off into an abyss of mindlessness, and even
just as a technique for strengthening a group's bargaining position
for the future, the minor party would have to be invented if it did
not come into existence regularly enough."
Bickel,
supra, n
11, at 79-80.
[
Footnote 18]
The Constitution expressly delegates authority to the States to
regulate the selection of Presidential electors. U.S.Const., Art.
II, § 1;
see McPherson v. Blacker, 146 U. S.
1,
146 U. S. 35
(1892). But, as we have emphasized,
"we must reject the 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."
Willams v. Rhodes, 393 U.S. at
393 U. S.
29.
[
Footnote 19]
As the District Court recognized in this case:
"The goal of voters such as plaintiff Eisenstat in states where
Anderson will appear on the ballot is to amass enough electoral
votes to elect Anderson. Ohio's deadline, by denying Anderson a
place on the ballot, removes the sixth largest slate of electors
from Anderson's reach, and thereby reduces the total pool of
electoral votes for which he may compete nationwide by 25
electors."
499 F. Supp. at 126.
[
Footnote 20]
In approximately two-thirds of the States and the District of
Columbia, filing deadlines for independent Presidential candidates
occur in August or September. The deadlines in a number of other
States are in June or July. Anderson was barred by early filing
deadlines in Ohio and four other States; he succeeded in obtaining
court orders requiring placement on the ballot in all five.
See
supra at
460 U. S. 784
and
460 U. S. 786,
and n. 6.
[
Footnote 21]
"The importance of this interest was made clear at the
Constitutional Convention in 1787, where the delegates debated
extensively the means of selecting the President. The alternatives
that received the most attention in the early debates were
appointment by the national legislature and election by the people
at large. The former would have made it impossible to guarantee an
independent executive. Election by the people was also disfavored,
in part because of concern over the ignorance of the populace as to
who would be qualified for the job."
664 F.2d at 563-564.
See William v. Rhodes, supra, at
393 U. S. 43-44
(Harlan, J., concurring in result) ("The [Electoral] College was
created to permit the most knowledgeable members of the community
to choose the executive of a nation whose continental dimensions
were thought to preclude an informed choice by the citizenry at
large").
[
Footnote 22]
See 1 A. Beveridge, The Life of John Marshall 250-287
(1916).
[
Footnote 23]
See K. Lockridge, Literacy in Colonial New England
1-43, 72-87 (1974); L. Soltow & E. Stevens, The Rise of
Literacy and the Common School in the United States: A
Socioeconomic Analysis to 1870, pp. 28-57 (1981).
[
Footnote 24]
Cf. Oregon v. Mitchell, 400 U.
S. 112 (1970) (upholding Act of Congress forbidding
States to disqualify voters in Presidential elections for failure
to meet state residency requirements).
[
Footnote 25]
A similar analysis applies to the Court of Appeals' assertion
that the State promotes informed voter choices by assuring that the
voters are apprised "by a date certain of most of their options."
664 F.2d at 564-565. This reasoning assumes that the most relevant
point of decision occurs in March, although the voter is not
actually required to make a final choice among eligible candidates
until November.
Moreover, as a matter of practical politics, the electoral
process contains its own cure for voters' ignorance about a
particular candidate. Unknown candidates simply do not win large
numbers of votes. A key goal of every political campaign is to
promote the candidate's name identification among the
electorate.
[
Footnote 26]
It is true, of course, that Ohio permits "write-in" votes for
independents. We have previously noted that this opportunity is not
an adequate substitute for having the candidate's name appear on
the printed ballot.
"It is suggested that a write-in procedure, under § 18600
et
seq., without a filing fee would be an adequate alternative to
California's present filing fee requirement. The realities of the
electoral process, however, strongly suggest that 'access' via
write-in votes falls far short of access in terms of having the
name of the candidate on the ballot. . . . [A candidate] relegated
to the write-in provision would be forced to rest his chances
solely upon those voters who would remember his name and take the
affirmative step of writing it on the ballot."
Lubin v. Panish, 415 U.S. at
415 U. S. 719,
n. 5.
Indeed, in the 1980 Presidential election, only 27 votes were
cast in the State of Ohio for write-in candidates. 14 America
Votes,
supra, n 4, at
317.
[
Footnote 27]
The Court of Appeals recognized the significance of the
flexibility that results from being able to make a later decision,
but concluded that the right to select a nominee for the Presidency
at a convention conducted in the late summer is a right possessed
by the political party, not a right possessed by the nominee
personally. "By contrast," the court reasoned, "the independent's
candidacy has no existence apart from that of the candidate, and no
interest in flexibility in choosing its nominee." 664 F.2d at 567.
Not only did the Court of Appeals err by ignoring the associational
rights of voters who desire to support the independent's candidacy,
but its rationale simply has no bearing on the State's asserted
"equality" interest.
[
Footnote 28]
Respondent conceded in the District Court that the nominating
petitions filed on March 20 remain unprocessed in his office until
June 15, when he transmits them to county boards of election. The
boards do not begin to verify the signatures until the period July
1 to July 15. Finally, the Secretary of State does not certify the
names of Presidential candidates, including independents, for
inclusion on the ballot until late August, after the party
nominating conventions. According to the District Court, based on
the stipulated facts, it appears that no more than 75 days are
necessary to perform these tasks. 499 F. Supp. at 133-134, 142.
[
Footnote 29]
This particular interest in "political stability" must not be
confused with the interest that is implicated by rules designed to
prevent "party raiding,"
see n 9,
supra. That interest, sufficient to sustain
the challenged restriction in
Rosario v. Rockefeller,
410 U. S. 752
(1973), is applicable only to party primaries; but this case
involves restrictions on access to the general election ballot. Nor
is it the same interest that justifies a rule disqualifying a
person who voted in a party primary from signing a petition
supporting the candidacy of an independent. Such a rule reflects
a
"policy of confining each voter to a single nominating act --
either voting in the partisan primary or a signature on an
independent petition."
Storer v. Brown, 415 U.S. at
415 U. S. 743;
see American Party of Texas v. White, 415 U.S. at
415 U. S.
785-786.
[
Footnote 30]
Even though the drafting of election laws is no doubt largely
the handiwork of the major parties that are typically dominant in
state legislatures, it does not follow that the particular
interests of the major parties can automatically be characterized
as legitimate state interests.
[
Footnote 31]
Section 3513.25.7 is a filing deadline, not a "sore loser"
statute. It blocks access to the general election ballot 75 days
before the primary, at a time when, by definition, no candidate has
yet lost the party primary. Ohio has a separate "sore loser"
statute, which is admittedly inapplicable to Anderson because he
made a timely withdrawal from the Ohio Republican primary.
See n 2,
supra. Furthermore, as the District Court observed, "it is
clear that R.C. 3513.257 acts as a disaffiliation provision only by
mere happenstance, not by any reasonably discernible legislative
design." 499 F. Supp. at 135.
[
Footnote 32]
Hall and Tyner, the Presidential and Vice Presidential
candidates, apparently complied with the one-year disaffiliation
provision.
Storer, 415 U.S. at
415 U. S. 738.
The disaffiliation statute was challenged by Storer and Frommhagen,
who wished to run as independents for the United States House of
Representatives.
JUSTICE REHNQUIST, with whom JUSTICE WHITE, JUSTICE POWELL, and
JUSTICE O'CONNOR join, dissenting.
Article II of the Constitution provides that "[e]ach State shall
appoint, in such Manner as the Legislature thereof may direct, a
Number of Electors" who shall select the President of the United
States. U.S.Const., Art. II, § 1, cl. 2. This provision, one of few
in the Constitution that grants an express plenary power to the
States, conveys "the broadest power of determination" and
"[i]t recognizes that, [in the
Page 460 U. S. 807
election of a President], the people act through their
representatives in the legislature, and
leaves it to the
legislature exclusively to define the method of effecting the
object."
McPherson v. Blacker, 146 U. S. 1,
146 U. S. 27
(1892) (emphasis added).
In exercising this power, the Ohio Legislature has provided
alternative routes to its general election ballot for capture of
Ohio's Presidential electoral votes. Political parties can earn the
right to field a Presidential candidate in the general election in
one of two ways. Parties that obtained at least 5% of the vote in
the preceding gubernatorial or Presidential election are
automatically entitled to have a candidate on the general election
ballot. Other political parties are required to file 120 days
before the primary election (in 1980, the date was February 4) a
statement of intent to participate in the primary, together with
petitions containing signatures of voters equal to 1% of the votes
cast in the last gubernatorial or Presidential election (in 1980
approximately 28,000 signatures would have been required). Ohio
Rev.Code Ann. § 3517.01 (Supp.1982).
Ohio also offers
candidates different routes to the
general election ballot. Should a candidate decide to seek the
nomination of a political party participating in Ohio's primary
election by capturing delegate votes for the party's national
convention, the candidate must file a declaration of candidacy and
a nominating petition bearing signatures from 1,000 members of the
party; the filing must occur no later than the 75th day before the
first Tuesday after the first Monday in June of the election year
(in 1980 the date was March 20). Ohio Rev.Code Ann. § 3513.05
(Supp.1982). Of course, because a political party has earned the
right to put on the ballot a candidate chosen at its national
convention, a candidate seeking the nomination of that party could
forgo the Ohio primary process and, if he should win at the
national convention, still be placed on the ballot as a party
candidate. If a candidate chooses to run as a nonparty candidate,
he must file, by
Page 460 U. S. 808
the same date as a party candidate participating in the primary,
a statement of candidacy and a nominating petition bearing the
signatures of 5,000 qualified voters. Ohio Rev.Code Ann. §
3513.25.7 (Supp.1982). Since a nonparty candidate does not
participate in a national convention, obviously he cannot benefit
from the routes made available to political parties.
Today the Court holds that the filing deadline for nonparty
candidates in this statutory scheme violated the First Amendment
rights of 1980 Presidential hopeful John Anderson and Anderson's
supporters. Certainly, absent a court injunction ordering that his
name be placed on the ballot, Anderson and his supporters would
have been injured by Ohio's ballot access requirements; by failing
to comply with the filing deadline for nonparty candidates Anderson
would have been excluded from Ohio's 1980 general election ballot.
[
Footnote 2/1] But the Constitution
does not require that a State allow any particular Presidential
candidate to be on its ballot, and so long as the Ohio ballot
access laws are rational and allow nonparty candidates reasonable
access to the general election ballot, this Court should not
interfere with Ohio's exercise of its Art. II, § 1, cl. 2, power.
Since I believe that the Ohio laws meet these criteria, I
dissent.
In support of its conclusion that Ohio's filing deadline "may
have a substantial impact on independent-minded voters,"
ante at
460 U. S. 790,
the Court explains that,
"[i]f the State's filing deadline were later in the year, a
newly emergent independent candidate could serve as the focal point
for a grouping of
Page 460 U. S. 809
Ohio voters."
Ante at
460 U. S. 791.
In addition, the Court says:
"Not only does the challenged Ohio statute totally exclude any
candidate who makes the decision to run for President as an
independent after the March deadline, it also burdens the
signature-gathering efforts of independents who decide to run in
time to meet the deadline."
Ante at
460 U. S. 792.
Finally, the Court intimates that the effect of the filing deadline
for nonparty candidates is that election campaigns are "monopolized
by the existing political parties."
Ante at
460 U. S. 794.
While, if true, these findings might provide a basis for finding a
substantial impact on nonparty candidates and their supporters, the
Court's conclusions are simply unsupported by the record in this
case.
Anderson makes no claim, and thus has offered no evidence to
show, that the early filing deadline impeded his
"signature-gathering efforts." That alone should be enough to
prevent the Court from finding that the deadline has such an
impact. A statute "is not to be upset upon hypothetical and unreal
possibilities, if it would be good upon the facts as they are."
Pullman Co. v. Knott, 235 U. S. 23,
235 U. S. 26
(1914). What information the record does contain on this point
leads to a contrary conclusion. The record shows that, in 1980,
five independent candidates submitted nominating petitions with the
necessary 5,000 signatures by the March 20 deadline, and thus
qualified for the general election ballot in Ohio.
See
ante at
460 U. S.
791-792, n. 12. The Court of Appeals found that this
number of nonparty candidates was not unusual in Ohio. 664 F.2d
554, 565, n. 14 (1981). The importance of this kind of evidence was
noted in
Storer v. Brown, 415 U.
S. 724 (1974), where the Court said:
"Past experience will be a helpful, if not always an unerring,
guide: it will be one thing if independent candidates have
qualified with some regularity, and quite a different matter if
they have not."
Id. at
415 U. S. 742.
The most obvious conclusion to be drawn from "past experience" in
this case is that a "reasonably diligent independent candidate"
choosing to take Ohio's nonparty route has little
Page 460 U. S. 810
difficulty in obtaining the necessary signatures in a timely
fashion.
See ibid. [
Footnote
2/2]
The Court's intimation that the Ohio filing deadline infringes
on a nonparty candidate who makes the decision to run for President
after the March deadline is similarly without support in the
record. [
Footnote 2/3] Certainly,
if such candidates emerge, the Ohio deadline will prevent their
running in the general election as nonparty candidates. Just as
certainly, however, Anderson was not such a candidate. Anderson
formally announced his candidacy for the Presidency on June 8, 1979
-- over nine months before Ohio's March 20 deadline. And the record
does not reveal the existence of any other individual
Page 460 U. S. 811
who decided to become a nonparty Presidential candidate after
the March 20 deadline. In fact, as noted above, the five
individuals who did seek electoral votes through the nonparty
alternative had no trouble making this decision before the filing
deadline, and had no trouble qualifying for a position on the
general election ballot.
Finally, there is nothing in the record to indicate that this is
a case where "independent-minded voters" are prevented from
rallying behind a candidate selected later in the election year so
as to guarantee "major parties" a monopoly on the election process.
Like-minded voters who do not want to participate in an existing
political party are at complete liberty to form a new political
party and obtain for themselves the same flexibility that
established political parties have in the selection of their
nominee for President. It is true that Ohio provides this benefit
only where a group of voters acts with some foresight and shows a
degree of support among the electorate, but this case presents no
challenge to these requirements.
On the record before us, the effect of the Ohio filing deadline
is quite easily summarized: it requires that a candidate, who has
already decided to run for President, decide by March 20 which
route his candidacy will take. He can become a nonparty candidate
by filing a nominating petition with 5,000 signatures and assure
himself a place on the general election ballot. Or he can become a
party candidate and take his chances in securing a position on the
general election ballot by seeking the nomination of a party's
national convention. Anderson chose the latter route, and submitted
in a timely fashion his nominating petition for Ohio's Republican
Primary. Then, realizing that he had no chance for the Republican
nomination, Anderson sought to change the form of this candidacy.
The Ohio filing deadline prevented him from making this change.
Quite clearly, rather than prohibiting him from seeking the
Presidency, the filing deadline only prevented
Page 460 U. S. 812
Anderson from having two shots at it in the same election
year.
Thus, Ohio's filing deadline does not create a restriction
"denying the franchise to citizens," such as those faced by the
Court in
Kramer v. Union School District, 395 U.
S. 621,
395 U. S. 626
(1969) (emphasis omitted),
Cipriano v. City of Houma,
395 U. S. 701
(1969) (per curiam),
Evans v. Cornman, 398 U.
S. 419 (1970),
Phoenix v. Kolodziejski,
399 U. S. 204
(1970), and
Dunn v. Blumstein, 405 U.
S. 330 (1972). Likewise, Ohio's filing deadline does not
create a restriction that makes it "virtually impossible" for
new-party candidates or nonparty candidates to qualify for the
ballot, such as those addressed in
Williams v. Rhodes,
393 U. S. 23,
393 U. S. 25
(1968),
Bullock v. Carter, 405 U.
S. 134 (1972), and
Lubin v. Panish,
415 U. S. 709
(1974). Yet in deciding this case, we are not without guidance from
prior decisions by this Court.
In
Storer v. Brown, the Court was faced with a
California statute prohibiting an independent candidate from
affiliating with a political party for 12 months preceding the
primary election. This required a prospective candidate to decide
on the form of his candidacy at a date some eight months earlier
than Ohio requires. In upholding, in the face of a First Amendment
challenge, this disaffiliation statute and a statute preventing
candidates who had lost a primary from running as independents, the
Court determined that the laws were "expressive of a general state
policy aimed at maintaining the integrity of various routes to the
ballot," 415 U.S. at
415 U. S. 733,
and that the statutes furthered "the State's interest," described
by the Court as "compelling," "in the stability of its political
system."
Id. at
415 U. S. 736.
The Court explained its holding, saying:
"The State's general policy is to have contending forces within
the party employ the primary campaign and primary election to
finally settle their differences. The general election ballot is
reserved for major struggles; it
Page 460 U. S. 813
is not a forum for continuing intraparty feuds. The provision
against defeated primary candidates running as independents
effectuates this aim, the visible result being to prevent the
losers from continuing the struggle and to limit the names on the
ballot to those who have won the primaries and those independents
who have properly qualified. The people, it is hoped, are presented
with understandable choices and the winner in the general election
with sufficient support to govern effectively."
"[The disaffiliation statute] carries very similar credentials.
It protects the direct primary process by refusing to recognize
independent candidates who do not make early plans to leave a party
and take the alternative course to the ballot.
It works against
independent candidacies prompted by short-range political goals,
pique, or personal quarrel. It is also a substantial barrier to a
party fielding an 'independent' candidate to capture and bleed off
votes in the general election that might well go to another
party."
"A State need not take the course California has, but California
apparently believes with the Founding Fathers that splintered
parties and unrestrained factionalism may do significant damage to
the fabric of government.
See The Federalist, No. 10
(Madison).
It appears obvious to us that the one-year
disaffiliation provision furthers the State's interest in the
stability of its political system. We also consider that interest
as not only permissible, but compelling, and as outweighing the
interest the candidate and his supporters may have in making a
late, rather than early, decision to seek independent ballot
status. . . . [T]he Constitution does not require the State to
choose ineffectual means to achieve its aims. To conclude otherwise
might sacrifice the political stability of the system of the State,
with profound consequences for the entire citizenry, merely in the
interest
Page 460 U. S. 814
of particular candidates and their supporters having
instantaneous access to the ballot."
Id. at
415 U. S.
735-736 (emphasis added). The similarities between the
effect of the Ohio filing deadline and the California
disaffiliation statute are obvious.
Refusing to own up to the conflict its opinion creates with
Storer, the Court tries to distinguish it, saying that
it
"did not suggest that a political party could invoke the powers
of the State to assure monolithic control over its own members and
supporters."
Ante at
460 U. S. 803.
The Court asserts that the Ohio filing deadline is more like the
statutory scheme in
Williams v. Rhodes, supra, which was
designed to protect "
two particular parties -- the Republicans
and the Democrats -- and in effect tends to give them a complete
monopoly.'" Ante at 460 U. S. 802
(quoting Williams v. Rhodes, 393 U.S. at 393 U. S. 32).
See also ante at 460 U. S. 802
("In Williams v. Rhodes, we squarely held that protecting
the Republican and Democratic Parties from external competition
cannot justify the virtual exclusion of other political aspirants
from the political arena." But see Buckley v. Valeo,
424 U. S. 1 (1976)
(per curiam)). "Ohio's asserted interest in political stability,"
says the Court, "amounts to a desire to protect existing political
parties from competition." Ante at 460 U. S. 801.
But this simply is not the case. The Ohio filing deadline in no way
makes it "virtually impossible," 393 U.S. at 393 U. S. 25,
for new parties or nonparty candidates to secure a position on the
general election ballot. It does require early decisions. But once
a decision is made, there is no claim that the additional
requirements for new parties and nonparty candidates are too
burdensome. In fact, past experience has shown otherwise. What the
Ohio filing deadline prevents is a candidate such as Anderson from
seeking a party nomination and then, finding that he is rejected by
the party, bolting from the party to form an independent candidacy.
This is precisely the same behavior that California sought to
prevent by the disaffiliation statute this Court upheld in
Storer.
Page 460 U. S. 815
The Court makes other attempts to distinguish this case from the
obviously similar
Storer case. The Court says Ohio has no
interest in preventing "intraparty feuding," because, by the nature
of the Presidential nominating conventions "
intraparty feuding'
will continue until August." Ante at 460 U. S. 804.
[Footnote 2/4] This is certainly no
different than the situation in Storer. Essentially all of
the battles for party nominations in California would have taken
place during the 12 months before the party primaries -- the period
during which an independent candidate had to be disaffiliated with
any party.
The Court further notes:
"
Storer upheld the State's interest in avoiding
political fragmentation in the context of elections wholly within
the boundaries of California. The State's interest in regulating a
nationwide Presidential election is not nearly as strong."
Ante at
460 U. S. 804
(footnote omitted). The Court's characterization of the election
simply is incorrect. The Ohio general election in 1980, among other
things, was for the appointment of Ohio's representatives to the
electoral college. U.S.Const., Art. II, § 1, cl. 2. The Court
throughout its opinion fails to come to grips with this fact. While
Ohio may have a lesser interest in who is ultimately selected by
the electoral college, its interest in who is supported by its own
Presidential electors must be at least as strong as its interest in
electing other representatives. While the Presidential electors may
serve a short term and may speak only one time on behalf of the
voters they represent,
Page 460 U. S. 816
their role in casting Ohio's electoral votes for a President may
be second to none in importance.
See Burroughs v. United
States, 290 U. S. 534,
290 U. S. 545
(1934).
The Court suggests that
Storer is not controlling,
since, in that case, the Court held that the California
disaffiliation statute was not discriminatory because party
candidates were prohibited from affiliating with another political
party for the 12 months preceding the primary election. The Court
says that Ohio's filing deadline does discriminate against nonparty
candidates. But merely saying it is so does not make it so. As
explained later, nonparty candidates and party candidates wishing
to participate in Ohio's primary election must file on the same
date. It is true that party candidates can obtain a place on the
general election ballot without participating in the primary by
obtaining a party's nomination at its national convention. But this
is a benefit given to the party, and only incidentally received by
the winning party candidate; it provides no benefit to one who
seeks, but fails, to obtain a party nomination. On the whole, party
candidates have a more difficult chore in getting a place on the
general election ballot than do nonparty candidates; a fact of
which Anderson and other unsuccessful rivals for the 1980
Republican nomination are doubtless aware. Nonparty candidates, if
they file in time and submit the necessary nominating petitions,
are assured of a place on the ballot; party candidates must win a
party nomination.
In a final attempt to distinguish
Storer, the Court
argues that, even if Ohio is serving some interest in preventing
"intraparty feuding," the filing deadline is "both too broad and
too narrow"; the Court even argues that the filing deadline may, in
fact, impair this interest.
Ante at
460 U. S. 805.
The Court claims that the effect of the deadline is too broad
because it applies "to independent candidates who have not been
affiliated in the recent past with any political party."
Ibid. Its effect is too narrow because it "does not
prohibit independent candidacies by persons formerly affiliated
with
Page 460 U. S. 817
a political party, or currently participating in intraparty
competition."
Ibid. The Court says the filing deadline may
impair the States' interest in preserving political stability
because it may force independent-minded voters "
to create minor
parties without first attempting to influence the course taken by a
major one.'" Ibid. (quoting A. Bickel, Reform and
Continuity 87-88 (1971)). But each of these criticisms could have
been asserted against the California disaffiliation
statute.
The point the Court misses is that, in cases like this and
Storer, we have never required that States meet some kind
of "narrowly tailored" standard in order to pass constitutional
muster. In reviewing election laws like Ohio's filing deadline, we
have said before that a court's job is to ensure that the State "in
no way freezes the
status quo, but implicitly recognizes
the potential fluidity of American political life."
Jenness v.
Fortson, 403 U. S. 431,
403 U. S. 439
(1971). If it does not freeze the
status quo, then the
State's laws will be upheld if they are "tied to a particularized
legitimate purpose, and [are] in no sense invidious or arbitrary."
Rosario v. Rockefeller, 410 U. S. 752,
410 U. S. 762
(1973).
See also Marston v. Lewis, 410 U.
S. 679 (1973) (per curiam);
Burns v. Fortson,
410 U. S. 686
(1973) (per curiam);
American Party of Texas v. White,
415 U. S. 767
(1974);
Mandel v. Bradley, 432 U.
S. 173 (1977) (per curiam);
Clements v.
Fashing, 457 U. S. 957
(1982). The Court tries to avoid the rules set forth in some of
these cases, saying that such rules were "applicable only to party
primaries," and that "this case involves restrictions on access to
the general election ballot."
Ante at
460 U. S. 802,
n. 29. The fallacy in this reasoning is quite apparent: one cannot
restrict access to the primary ballot without also restricting
access to the general election ballot. As the Court said in
Storer v. Brown:
"The direct party primary in California is not merely an
exercise or warm-up for the general election, but an integral part
of the entire election process, the initial stage in a two-stage
process by which the people
Page 460 U. S. 818
choose their public officers. It functions to winnow out and
finally reject all but the chosen candidates."
415 U.S. at
415 U. S. 735
(footnote omitted).
The Ohio filing deadline easily meets the test described above.
In the interest of the "stability of its political system,"
Storer v. Brown, 415 U.S. at
415 U. S. 736,
Ohio must be "free to assure itself that [a nonparty] candidate is
a serious contender, truly independent, and with a satisfactory
level of community support."
Id. at
415 U. S. 746.
This interest alone is sufficient to support Ohio ballot access
laws, which require that candidates for Presidential electors
choose their route early, thus preventing a person who has decided
to run for a party nomination from switching to a nonparty
candidacy after he discovers that he is not the favorite of his
party. But this is not the only interest furthered by Ohio's
laws.
Ohio maintains that requiring an early declaration of candidacy
gives its voters a better opportunity to take a careful look at the
candidates and see how they withstand the close scrutiny of a
political campaign. The Court does not dispute the legitimacy of
this interest. But the Court finds that
"the State's important and legitimate interest in voter
education does not justify the specific restriction on
participation in a Presidential election that is at issue in this
case."
Ante at
460 U. S. 796.
Admitting that the Constitutional Convention in 1787, in
establishing the electoral college and providing plenary authority
to the States for election of its members to the college, had a
heightened awareness of the importance of an informed electorate,
the Court tells us how times have changed in the past 200 years,
and how the problem of ensuring an informed electorate is no longer
so great. The Court explains:
"In the modern world, it is somewhat unrealistic to suggest that
it takes more than seven months to inform the electorate about the
qualifications of a particular candidate. . . . Our cases reflect a
greater faith in the ability of individual voters to inform
themselves about campaign issues."
Ante at
460 U. S.
797.
I cannot agree with the suggestion that the early deadline
reflects a lack of "faith" in the voters. That Ohio wants to
Page 460 U. S. 819
give its voters as much time as possible to gather information
on the potential candidates would seem to lead to the contrary
conclusion. There is nothing improper about wanting as much time as
possible in which to evaluate all available information when making
an important decision. Besides, the Court's assertion that it does
not take 7 months to inform the electorate is difficult to explain
in light of the fact that Anderson allowed himself some 19 months
to complete this task; and we are all well aware that Anderson's
decision to make an early go of it is not atypical. The Court's
reliance on the quote from
Dunn v. Blumstein, 405 U.S. at
405 U. S. 358,
that campaign spending and voter education occur "largely during
the month before an election" cannot be taken seriously when
applied to Presidential campaigns. I see no basis whatsoever for
the Court's conclusion that "[t]his reasoning applies with even
greater force to a Presidential election."
Ante at
460 U. S.
798.
"In a republic where the people are sovereign, the ability of
the citizenry to make informed choices among candidates for office
is essential, for the identities of those who are elected will
inevitably shape the course that we follow as a nation."
Buckley v. Valeo, 424 U.S. at
424 U. S. 14-15.
This is especially true in the context of candidates for
President.
"The President is vested with the executive power of the nation.
The importance of his election and the vital character of its
relationship to and effect upon the welfare and safety of the whole
people cannot be too strongly stated."
Burroughs v. United States, 290 U.S. at
290 U. S. 545.
I believe the Court of Appeals aptly explained the present day need
in saying:
"To be sure, some of the impediments to an informed electorate
that existed in 1787 have been removed by our extensive present day
communications network, through which news of a candidacy is
transmitted nationwide virtually simultaneously with its
announcement. However, rapid communication can only inform the
electorate of the existence of a candidacy. Equally crucial to a
meaningful vote is the electorate's ability to evaluate
Page 460 U. S. 820
those who would be President once aware of their desire to fill
the post. Ohio may very reasonably conclude that requiring
Presidential candidates to be in the public eye for a significant
time materially advances its interest in careful selection."
664 F.2d at 564. [
Footnote
2/5]
Ohio also has an interest in assisting its citizens in
apportioning their resources among various candidates running for
the Presidency. The supply of resources needed for operating a
political campaign is limited; this is especially true of two of
the most important commodities, money and volunteers. By doing its
best to present the field of candidates by spring, right at the
time that campaigns begin to intensify, Ohio allows those of its
citizens who want to provide support other than voting, adequate
time to decide how to divide up that support. While the Court does
not give attention to this interest, it is certainly a legitimate
one and an important one in terms of the effective campaigning of
Presidential candidates.
The Court seems to say that, even if these interests would
otherwise be served by Ohio's filing deadline, they are "undermined
by the State's willingness to place major party nominees on the
November ballot even if they never campaigned in Ohio."
Ante at
460 U. S. 798.
The Court fails to follow its own warning that "
[s]ometimes the
grossest discrimination can lie in treating things that are
different as though they were exactly alike.'" Ante at
460 U. S. 801
(quoting Jenness v. Fortson, 403 U.S. at 403 U. S.
442). Underlying the Court's entire opinion is the idea
that "independent candidates" are treated differently than
candidates fielded by the "major parties." But this observation is
no more productive than comparing
Page 460 U. S. 821
apples and oranges and wondering at the difference between
them.
First of all,
any political party, major, minor, or
otherwise, can qualify for a position on Ohio's general
election ballot and have that position held open until later in the
election year. The reasonableness of this approach is fairly
obvious. Political parties have, or at least hope to have, a
continuing existence, representing particular philosophies. Each
party has an interest in finding the best candidate to advance its
philosophy in each election.
See Cousins v. Wigoda,
419 U. S. 477
(1975);
Democratic Party v. Wisconsin ex rel. La Follette,
450 U. S. 107
(1981). The Court suggests that, if such a procedure is so
important for political parties, then followers of a particular
candidate should also have more time.
See, e.g., ante at
460 U. S. 800,
n. 27. This argument simply does not wash. Any group of like-minded
voters, if they are of sufficient numbers, is free to form a
political party and ensure more time in selecting a candidate to
express their views. But followers of a particular candidate need
no time to find such a representative; they are organized around
that candidate. Such followers have no real organized existence in
the absence of that particular candidate.
Comparing party candidates and nonparty candidates is somewhat
more useful, but does not change the result. Any candidate wanting
to pursue his place on the Ohio general election ballot through
Ohio's preliminary procedures must file at the same time.
Nevertheless, should an individual who has not filed a statement of
candidacy be chosen by a political party as its nominee, Ohio does
not attempt to keep that candidate off of its general election
ballot. To the extent that this is an advantage to the successful
party candidate, however, it is a benefit given to the party, which
the party candidate only receives incidentally. [
Footnote 2/6] Furthermore,
Page 460 U. S. 822
to the extent the party candidate is benefited, such benefit is
counterbalanced by the risk he takes of not getting the party
nomination at all. Only the nonparty candidate can assure himself
of a place on the general election ballot. Many party candidates
may seek the party's nomination, but only one of them will get
it.
The Court's decision in this case is not necessary for the
protection of like-minded voters who want to support an independent
candidate; Ohio laws already protect such voters. This case
presents a completely different story. John Anderson decided some
19 months before the 1980 general election to run for President. He
decided to run as a Republican Party candidate. When Anderson
sought to get on the Ohio ballot after the March 20 deadline, he
was not a "newly emergent independent candidate" whose candidacy
had been created by dramatic changes in the election campaign. He
was a party candidate who saw impending rejection by his party,
and, rather than throw his support to the party's candidate or some
other existing candidacy, Anderson wanted to bolt and have a second
try.
Page 460 U. S. 823
The Court's opinion protects this particular kind of candidate
-- an individual who decides well in advance to become a
Presidential candidate, decides which route to follow in seeking a
position on the general election ballot, and, after seeing his
hopes turn to ashes, wants to try another route. The Court's
opinion draws no line; I presume that a State must wait until all
party nominees are chosen, and then allow all unsuccessful party
candidates to refight their party battles by forming an
"independent" candidacy. I find nothing in the Constitution which
requires this result. For this reason I would affirm the judgment
of the Court of Appeals.
[
Footnote 2/1]
Anderson would not have been totally excluded from participating
in the general election since Ohio allows for "write-in"
candidacies. The Court suggests, however, that this is of no
relevance, because a write-in procedure "is not an adequate
substitute for having the candidate's name appear on the printed
ballot."
Ante at
460 U. S. 799,
n. 26. Until today, the Court had not squarely so held, and in
fact, in earlier decisions, the Court had treated the availability
of write-in candidacies as quite relevant.
See Storer v.
Brown, 415 U. S. 724,
415 U. S. 736,
n. 7 (1974).
[
Footnote 2/2]
Furthermore, as the Court of Appeals pointed out, one could
speculate that nonparty candidates would have more difficulty
meeting the signature requirements of various States if the States
had less discretion in setting their own deadlines.
"We also note that the effect of limiting the states' discretion
would be to require uniformity, thus compressing the signature
gathering and campaigning requirements in the various states. This
would greatly increase the burden on all candidates, who may
presently devote their scarce resources to a few states at a
time."
664 F.2d 554, 565, n. 13 (1981).
[
Footnote 2/3]
It would seem that realistically speaking, there is little
chance in these modern times of a serious candidate for the
Presidency making his decision to run after the spring of the
election year. We might judicially take notice that it is presently
the spring of the year preceding an election year, and numerous
candidates have already thrown their hats into the campaign ring.
For proof of a contrary point, the Court cites by reference to the
candidacies of Martin Van Buren in 1848, James B. Weaver in 1892,
Theodore Roosevelt in 1912, and Robert La Follette in 1924.
Ante at
460 U. S. 792,
n. 13. The most obvious response is that the method of Presidential
campaigning has so changed since the last of these campaigns that
such candidacies are not as likely to arise today. It also should
be noted that most, if not all, of these men decided to seek the
Presidency far in advance of their actual nomination. Finally, none
of these individuals were elected in the years in question, and
those who split from their political parties may well have been
responsible for the election's going to a different party, a result
which this Court, in
Storer v. Brown, supra, said States
were at liberty to try to avoid.
[
Footnote 2/4]
The Court seeks comfort from the idea that the filing deadline
is not a "sore loser" statute which prevents a candidate who is
defeated in a primary from running as an independent candidate.
Ante at
460 U. S. 804,
n. 31. But the effect of the deadline in this case is much the
same. Under the Court's approach, so long as a candidate pulls out
of his party race before the votes of the party are counted, he
must be recognized as a "newly emergent independent candidate"
whose candidacy is created by a dramatic change in national events.
To the contrary, I submit that such a candidate is no more than a
"sore loser" who ducked out before putting his popularity to the
vote of his party.
[
Footnote 2/5]
The Ohio Legislature's decision is not that different from the
decision by the Federal Government requiring television networks to
provide early access for Presidential candidates. Recently, in
CBS, Inc. v. FCC, 453 U. S. 367
(1981), this Court held that, under the Federal Communications Act,
a Presidential candidate had a right to television access as early
as December, 1979, some 11 months before the election.
[
Footnote 2/6]
The Court says that, nevertheless, this exposes a serious
weakness in the State's claim that it wants to put all the
candidates before its voters early, so they will have time to
evaluate the candidates. Even if the Court were correct, the other
interests advanced by the State would justify the filing deadline
for nonparty candidates. But I do not believe the Court is
correct.
The Court ignores the fact that voters learn about a nonparty
candidacy only by listening to what the candidate has to say.
Reality requires a different conclusion about party candidates.
Even before a party candidate is chosen, the public will know a
great deal about that candidate because of its knowledge about the
party. Of course, the Court is correct that the focus of a party
will vary somewhat according to the candidate chosen. But this
proves only that the time between the choosing of the party's
nominee and the general election should be sufficient to allow the
voters to evaluate the party's candidate. It does not prove that
the voters need as much time evaluating the party candidate as they
need for an individual who does not run as the representative of
any particular established views. It would, in fact, be quite
reasonable for a State to require, in furtherance of its voter
education interest, that the nonparty candidate put himself before
the public at an earlier time than it requires of the party
candidate.