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state constitutional protection of democratic pluralism

LLM Candidate 1994
UMKC School of Law
August 8, 1994

STATE CONSTITUTIONAL PROTECTION OF DEMOCRATIC PLURALISM

Introduction to the 2001 edition:

This article
The original of this thesis disappeared when my computer was stolen. This version was obtained by scanning a working draft. In the process, some of the text was lost, citations scrambled, underlining and superscripts are not as they should be, so reader beware. No attempt has been made to update caselaw as of 2001, because this work is of historical interest to show where my head was at in 1994, since this document served as the business plan for Tavel & Stewart, Public Interest Law Firm.
All rights, even fair use, remain with the author. This document is proprietary, privileged attorney work product and a trade secret of Tavel & Stewart PILF. You agree to these terms in exchange for a license to read further. Offers for publication are welcome. Anyone wishing to help us add hypertext links is welcome to contact us. gt_bear@hotmail.com, .

Introduction

Legal recognition of the rights of minor political parties and independents to participate in free and open elections has been sporadic. Decisions have been unpredictable, arbitrary and capricious, at times employing the strictest scrutiny and upholding fundamental rights, at other times allowing utter deference to legislatures and officials in prohibiting competitors. This article first examines the "floor" of how voting rights are protected in practice under the federal constitution.
Next, state constitutions are explored as a potential alternative source for protecting these rights. In particular, many state constitutions have a "free and equal elections" clause. So far as a review of the literature has revealed, there has been no prior published research on these state clauses. So one purpose is to fill this gap, and serve as a resource for anyone litigating cases having to do with voting and elections. However, the inquiry primarily focuses more narrowly on the issue of ballot access for minor party and independent candidates. The final section presents summary and analysis as well as suggestions for practice and speculation about implementing the approaches outlined herein.
CONTENTS:
Introduction
Part I ? The federal floor
* The current federal standard ? Anderson, Norman, Takushi
* Historical development of federal voting rights ?
The civil rights movement and Thurgood Marshall.
Part II ?State constitutions as a source of voting rights.
A The state constitutional law renaissance and William Brennan
B The Free and Open Elections clause
C Future directions
D Summary and conclusions
Appendices
Tables A?C
Appendix 1: State by state analysis
Appendix 2: Table of Cases




Part I: The federal floor

Anderson v. Celebrezze:
Searching for a standard of review for in ballot access cases.
This section addresses the federal constitutional floor.
It is roughly divisible into several areas: constitutional structure; case law prior to Anderson; the Anderson decision; how the Anderson test has been applied by lower courts; Norman 2 and Takushi 3: refining the Anderson standard.
The original U.S. Constitution was structured into seven articles concerning, respectively, the legislative, executive, judicial, states, amendment procedure, federal supremacy, and enactment. Article 1, § 4, leaves to the states "The Times, Places and Manner of holding Elections for Senators and Representatives, ... but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators." Art. IV § 2, privileges and immunities, also has some applicability to federal elections. The Bill of Rights, ten amendments, was added shortly after ratification. Of these, the First Amendment has been found to confer voting rights. 4 Subsequently seventeen more amendments were added, and most of these concerned elections.
Case law prior to Anderson:
Although 14th and 15th Amendment cases were brought as early as 1915 by the NAACP 6, federal involvement substantially increased in the 1960's. An activist judiciary sought to incorporate the Bill of Rights' fundamental liberties into the Fourteenth Amendment. Gomillion v. Lightfoot 7 invalidated a racial gerrymander in Tuskegee, Alabama. 8 In Baker v. Carr 9 the court decided that reapportionment cases are justiciable in federal v. Reno. @ Gray v Sanders" was among the first, setting out a "one voter, one vote" standard. Westbury v Sanders1l decided a Georgia reapportionment case on Article I section 2 grounds. "Other rights, even the most basic, are illusory
if the right to vote is undermined."
Reynolds v Sims 12 followed, applying strict scrutiny. 13 Poll taxes in state elections were outlawed in Harper v. Virginia Board of Elections14 , overruling Butler v. Thompson 15 in strong language frequently cited, stating that the right to vote is fundamental. 16 Literacy tests, upheld in Lassiter v. Northampton Election Board 17, were outlawed under the Voting Rights Act, itself upheld in South Carolina v.Katezenbach 18.
The normal strict scrutiny test is that state action which impinges on a protected class or a fundamental right must further compelling state interests, and do so using the least restrictive means, narrowly tailored to promote the interest. Strict scrutiny technically is an equal protection term, but First Amendment analysis also employs a compelling interest/least restrictive means test for pure speech.
In contrast, minimal scrutiny will uphold regulations within the state's police power or the federal government's enumerated powers, when there is, or could be, a rational basis for the regulation, and it is not arbitrary or capricious.
Increasingly courts recognize that some situations do not lend themselves to such easy categorization. Voting rights and ballot access cases are among these situations.
At one time, federal courts avoided interference with state election procedures on justiciability and federalism 19 grounds. The constitution provides that states may make their own election laws for conduct of federal election, but that congress may override those. Thus for the courts to get involved would implicate separation of powers as well as federalism 20 concerns; the court would be intruding in an area textually committed to congress. But in Baker v. Carr 2l this changed, and federal courts became actively involved in issues such as racial gerrymandering. While the concerns of racial minorities were addressed and redressed, political minorities were less protected prior to Williams v. Rhodes . In that case, Ohio attempted to keep George Wallace's American Independent Party 23 off the ballot. The court granted a stay keeping Wallace on the ballot, then heard and decided the case rapidly. The court found no compelling state interest in protecting the Democratic and Republican parties and
struck down the whole body of election law which had effectively 24 barricaded the Ohio ballot.
That this holding was limited to its facts became clear in subsequent cases which backed off from applying strict scrutiny. Jenness v. Fortson 25 upheld similar laws in Georgia, in affect applying minimal scrutiny. The companion cases Storer v. Brown 26 and American Party of Texas v. White 27 added to the confusion as to what standard was being applied. Storer looked at "substantial" state interests, and failed to apply a least restrictive means test, in affirming California disaffiliation statutes. White upheld severe ballot access restrictions, which required signatures of 5% of the voters, provided a short deadline to gather them in, and limited who could run and who could sign. In Ill. v. Socialist Workers Party 8 , the court did apply a least restrictive means test 29 in striking down an irrational classification . The next major
case was Anderson30.
Access to the ballot can be an arduous, expensive undertaking for newly emerging independent candidates and minority parties. The maze of broad and stringent requirements that must be met differs in every state.... It can make a national candidacy virtually impossible.31
This section discusses Anderson v. Celebrezze 32, followed by analysis of two recent cases which have sought to clarify the Anderson test. Justice Stevens wrote the court's opinion for a five? four majority consisting of himself and Justices Marshall, Brennan, Blackmun, and Chief Justice Burger. Justice Rehnquist's dissent33 was joined by O'Connor, Powell, and White.
On April 24, 1980, John Anderson announced his independent 34 candidacy for President. He obtained ballot status in 50 states and received 5.9% of the vote in Ohio and 6.6% nationally with 5,720,060 votes. 35 On May 16th he tendered a nominating petition of 14,500 signatures to Secretary of State Celebrezze, who refused it as untimely, as it was filed past a March 20th deadline established by statute.36
Anderson, two Ohio voters, and a New Jersey voter, filed suit in federal court challenging the constitutionality of the deadline. The ACLU and Libertarian Party filed Amicus briefs. The district court granted Anderson's motion for summary judgment and ordered 37 his name placed on the ballot. The district court viewed the deadline as impermissibly burdening First Amendment rights, diluting value of votes cast in other states, and violating equal protection since the major parties did not nominate their candidate until the August primary.38 Respondent sought expedited review but did not obtain a stay of the order. 39 The Sixth Circuit reversed. Since Anderson had had other 40, 41 early deadlines struck down in Maine and Maryland , the Supreme Court granted certiorari to resolve the conflict.42
The court noted that the interests of candidates are inseparable from the rights of voters, citing Bullock v. Carter 43
The Court cited Justice Harlan in NAACP v. Alabama ex rel. Patterson 44 for the proposition that freedom of association is part of freedom of speech and liberty protected by the due process clause of the 14th Amendment. Thus in Anderson the court relied on principles established by Thurgood Marshall for the NAACP to protect political minorities as well as racial ones. 45 The court next drew on its analysis of Williams v. Rhodes 46 , an earlier review of Ohio's ballot access law, stating that the state laws burden freedom of association and the right to vote effectively, and that these rights are among the most precious freedoms. 47
The interests at issue were not solely a hope that the candidate will win. An "election campaign is an effective platform for expression of views on the issues" and "is a means of disseminating ideas as well as attaining political office.” 48
The court found that these First Amendment interests were sufficient to decide the case without reaching an equal protection analysis, yet explicitly relied on prior equal protection cases. 49
"Nevertheless, the State's important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions.” The court then set out what has become the test
in ballot access cases.
[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 then must identify 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 these interests, it must also consider the extent to which those interests make it necessary to burden the plaintiff's rights. 51
The rest of the opinion applies this standard to the facts. In Part II, the court first considered the character and magnitude of the asserted injury. It drew on sources including the Harvard Law Review 52, Carolene Products 53 Lawrence Tribe 54 and New York Times v. Sullivan. It found a uniquely important national interest in a presidential campaign, affecting voters in other states and found that the early deadline imposed a significant burden.
Next, in Part III, it examined the three interests put forward by the state as justifications for the rule: voter education, equal treatment for partisan and independent candidates, and political stability.
Education was recognized as a legitimate and important state interest. The term "important" is significant here; its use instead of "compelling" suggests that less than strict scrutiny is being applied. Several cases involving intermediate scrutiny were cited. 16 The court rejected the voter education interest based on its analysis that the regulation does not in fact advance the education goal.
The court also rejected the idea that requiring independent candidates to file at the same time as partisan candidates for the primary, rather than by the date of the primary, actually constituted equal treatment. The deadline did not promote even minimal administrative convenience because signature verification did not begin until July. 57
The interest in political stability dealt with the fact that Anderson had been a Republican, and had participated in some early Republican primaries, although not that of Ohio. Earlier decisions had recognized prevention of intra?party raiding as important,
directly promoting the compelling interest of preserving the integrity of the process. Storer v. Brown. The court distinguishes "sore?loser" and disaffiliation requirements, which are legitimate, but not directly present in this case, from attempts by the major parties to use the state to grant themselves a monopoly. It found that the early filing date was "not precisely drawn 08 to protect against intra?party feuding. The court concluded that the state interests are minimal and outweighed by the burden on the rights of 59 voters, and reversed.
The dissent characterized Anderson as a sore loser, and viewed the case as governed by Storer v. Brown, which had upheld a oneyear disaffiliation requirement, based on the state interest in avoiding intra?party feuding. It rejected any "narrowly?tailored" component of a test, as not based in prior case law. Rehnquist cited to Article II § I cl. 2 as authority for his perspective that states have rights to conduct their elections without micromanagement from federal courts. 60
Courts have continued to have difficulty in grasping the appropriate standard of review to be used in ballot access cases. Two cases decided in 1992 provide substantial guidance. The confusion as to the appropriate standard is not eliminated, but is at least channelled into a narrower area.
Norman v. Reed 61 revisited the setting of Illinois Elections Board v. Socialist Workers Partv62 and Moore v. Qgilvie . Illinois' ballot access laws require not only 25,000 signatures for state?wide candidates" but also further expression of local support. The law required signatures on petitions of 5% of the voters but not more than 25,000 for each district. The Harold Washington Party (HWP) was named after the late mayor of Chicago. It had won access to the ballot in the city of Chicago, and in this suit was seeking to extend its reach to the suburban half of Cook County for the 1990 elections.
Cook county is divided into two parts: the City of Chicago and the remainder. Some officials are elected for a particular district while others are chosen on a county?wide basis. The HWP filed petitions which contained over 25,000 signatures in the Chicago part, but less in the unincorporated section. At issue was whether the entire slate fails, for various technical reasons, and whether the county?wide candidates were properly nominated, or must have 25,000 signatures from both halves of the county.
Reed, a voter, filed an opposition to the petition. The elections board, ruling on her complaint, found that the HWP could run candidates in the city and county?wide areas 65 . and was not disqualified for failure to nominate judicial candidates. This decision was overturned by the county circuit court on both points. The State Supreme Court found not only that the party was barred by the failure to get the signatures in the unincorporated section, but that it also was barred from using the HWP name. The issue of judicial candidates was not reached. Three of the seven members of the state court dissented. No formal opinion was issued. A stay was granted by Justice Stevens. In the election, some HWP candidates received over five percent of the vote, establishing the HWP for that district, pendant on resolution of the suit. Under Illinois' ballot access rules, five percent of the vote is required to establish a party's ballot status in a given district, even if the party is already qualified state?wide.
Justice Souter's opinion for the court was joined by Justices Rehnquist, O'Connor, and White, who had dissented in Anderson, as well as Stevens, Blackmun, and Kennedy. Justice Scalia dissented, while Thomas did not take part. Justice Souter said:
For more than two decades, this Court has recognized the constitutional right of citizens to create and develop new political parties.... To the degree that a State would thwart this interest by limiting the access of new parties to the ballot, we have called for the demonstration of a corresponding interest sufficiently weighty to justify the limitation, see Anderson, supra, at 789, and we have accordingly required any severe restriction to be narrowly drawn to advance a state interest of compelling importance .... Thus the State Supreme Court's inhospitable
For keyreading of § 10?5 sweeps broader than necessary to advance electoral order and accordingly violates the First Amendment right of political association.... (T)he more onerous standard for local contests was not the least restrictive means of advancing that interest.66 Scalia's dissent finds legitimate state interests and would uphold the state decision.
The casual reader, missing the word "severe" in the above passage, might think that this case re?institutes the strict scrutiny standard of Williams v. Rhodes for ballot access cases.67 Another 1992 case showed that this is not always so.
Burdick v. Takushi68 dealt with a case in which the court deemed that the restrictions on ballot access were not severe, and set out a new standard for analysis. In this new standard, severe restrictions are subject to strict scrutiny, while lesser restrictions receive lessened review.
Petitioner Alan Burdick was a Hawaiian voter who sought to cast a write?in vote for Donald Duck 69 in the 1988 primary and general elections, for a state representative seat in which only one name was on the ballot. Hawaii law is silent on the issue and the voting machines are not set to allow write?in votes. He also sought to have his vote counted and published among the results.
The federal district court found that the ban on write?in votes violated First Amendment rights of expression and association.70 The Court of Appeals stayed a preliminary injunction and vacated the decision on Pullman7l abstention grounds. State law and constitutional grounds were certified to the Hawaii Supreme Court which summarily found that write?in votes 72 could be and were banned.The district court then granted summary judgment for plaintiff. 73 The Court of Appeals reversed creating a split in the circuits.74 The court granted certiorari. Common Cause and the Socialist Workers Party filed amicus briefs.
The court, in an opinion by Justice white for six members of the court, rejected the view that every ballot access case requires strict scrutiny, allowing only measures narrowly tailored to meet compelling state interests. Instead, reasonable nondiscriminatory restrictions on voting rights are generally justified by a state's important regulatory interests.75 The Court then looked
at the importance of write?in voting in the context of Hawaii's ballot access laws. A candidate 76 , and his supporters, had three options. He could file nomination papers with one of the three established parties (Democrat, Republican, Libertarian), or get on the ballot as a new party by getting signatures of 1% of the voters, or file 15 signatures and a nominating petition for the non?partisan ballot. Hawaii's non?partisan ballot qualifies candidates for the general election if they get 10% of the overall primary vote, or a number sufficient to nominate a partisan candidate, whichever is lower. 77 Given the small burden imposed by these options, the ban on a write?in vote imposed only a small burden under the Anderson test, and was counterbalanced by the state interests.78 Earlier cases, such as Williams and Storer, had looked at write?in voting as part of the over?all reasonableness of a ballot access scheme, while this case looks at the ballot access scheme to judge the reasonableness of a write?in ban.
Justice Kennedy, joined by Blackmun and Stevens, dissented.79 He did not disagree with the method used, and reached an opposite result. He viewed a ban on write?in voting to be a significant burden. In the election in question, only one name was present on the ballot, the Democratic party candidate. One party, the Democratic party, was predominate. Democratic candidates run unopposed 30 ? 40% of the time.80 Many voters cast blank ballots, although it cannot be shown whether they do so in protest or apathy. "The majority's approval of Hawaii's ban is ironic at a time when the new democracies in foreign countries strive to emerge from an era of sham elections in which the name of the ruling party candidate was the only one on the ballot." Prior to 1888, all votes were write?ins. Illinois 82, California 83, and Pennsylvania 84 have found a right to write?ins in their state constitutions. 85
None of the state interests put forward by the state were advanced by the ban. 86 Therefore, it failed under any level of scrutiny. 87
The dissent evidences a problem with the majority's new test. The level of scrutiny to be applied will depend on whether the burden is severe or only reasonable and nondiscriminatory. However, there is no test f or how a court is to make this determination, except by reference back to Anderson. In the instant case, six judges found that there is only a slight burden, and therefore no compelling interest is needed. 88 Three dissenters saw a significant burden.89 In practice, the determination as to whether a burden is significant will be strongly influenced by the personal preferences of the judges, until the court articulates some clearer standard. 90 This same problem has arisen in application of the Anderson standard, with some lower courts understanding Anderson's balancing test to allow minimal scrutiny. 91 Takushi supports this 92 approach where the burden on First Amendment rights is slight.
Litigants should be prepared to present evidence on the burden issue. Fewer cases will now be won on summary judgment motions.
Because Takushi seems to represent a retreat from Norman and Anderson, state constitutional grounds will become more crucial. These will be explored in part II.
--------------
B Historical development of federal voting rights ?
The Civil Rights Movement and Thurgood Marshall.
It is not possible to understand the current interplay of election laws, and the constitutional principles which limit these laws, without a review of history. These laws may seem neutral but they act to invidiously discriminate against minor parties as in the past they have worked to discriminate against minority voters. Several aspects of this history are especially important, notably the civil rights movement by which African Americans sought to
actually implement their Fifteenth Amendment right to vote.93
Efforts by Blacks to vote were grounded in terms and legal norms familiar to the courts: assertion of individual rights to equal treatment under the law.94 Logical consistency required that these norms be applied in a color?blind manner.95 The context of the voting rights struggle was a lack of fit between the ideological map, exalting principles such as liberty and equality,
and the reality of institutionalized racism, in which African Americans could not register, vote, or be elected.96 It was relatively easy to strike down overt racial bars to voting, but more difficult to challenge the arsenal of tactics and subterfuges used to deny Blacks the franchise. The grandfather clause, the White primary, poll taxes, literacy tests, lynching 97 , and simple election fraud were among these methods.
As will be seen, grandfather clauses, primaries, taxes, loyalty oaths and simple election fraud are among the methods currently used to deny minor parties effective ballot access. Lynching, on the other hand, is out of style.
Barriers to political participation by minorities occurred at many levels. The first was to ensure that Blacks (hispanics, indians, etc.) could not register to vote. If they passed that hurdle, they would be kept from exercising the vote, especially at primaries which were often the real election. Having failed to vote, their names could be stricken from the lists. Further measures could be taken in the case of minority candidates, organizers and activists. Excluding minorities f rom an opportunity to verify that votes are correctly counted further discourages minority participation. Actual vote fraud and ballot stuffing need not be frequently resorted to, so long as it remains available as a back?up.
Guinn v. United States98 struck down the use of grandfather clauses. These involved making voter registration difficult, but creating an exception for those who had been (or whose ancestors had been), registered as of a certain date. This ef f ectively included Whites while excluding Blacks. The court found that such clauses worked to institutionalize conditions prior to the 15th Amendment, and thus were in violation of it. This was the f irst case to successfully invoke the Fifteenth Amendment." Later the 14th Amendment came to have greater impact.
Procedures used by voter registrars also were used to continue to deny Blacks the opportunity to register.100 While extremely effective, these approaches could be challenged in court where a friendly forum was available. Although some judges were content with the status quo, others actively intervened.
What was then in appearance a color?blind process was in fact quite the opposite. And some federal judges refused to ignore that fact in their decision? making. They found that they had to be candid and quite specific in what they would and would not accept as color?blind practices. It is dif f icult to overstate the importance of the judiciary's willingness in those time to go, in a sense, to the heart of the matter. On more than a few occasions judges refused to be sidetracked or put off by spurious 101 arguments, delaying tactics, or questionable practices.
Racism now needed a new technique and found it in the White primary. Texas and South Carolina provide the clearest examples. Throughout the southern states after the reconstruction era, the Democratic party comprised a one party system. This ended for the most part in 1968 with the Wallace candidacy, but continues in Arkansas, Kentucky'02, and many Missouri counties north of I70.103 Victory in the Democratic primary was the equivalent of victory in the general election.104 However, the primaries were considered to be private clubs, able and more than willing to exclude Blacks. The 14th Amendment could only be applied where state action is found.105
The Texas White Primary cases106 are the textbook example, not only of the Supreme Court's willingness to strike down racist voting practices, but of the state government and Democratic party's willingness to come up with new methods to avoid the court's mandate.
United States v. Classic107 recognized that participation in primaries for federal office is among the privileges and immunities of national citizenship. The White primary cases108, as they are known, applied the civil war amendments to Texas primaries.
In South Carolina, the Democratic Primary was conducted largely in private clubs which did not admit Blacks. 109 Voters further had to sign an oath supporting segregation.110 A court found that this was a government function, and thus was state action.
The legal challenges to depriving Blacks of voting rights were primarily brought by the National Association for the Advancement of Colored People (NAACP). After 1939, the NAACP Legal Fund became a separate entity. Founded in 1909 by Oswald Garrison"' Villiard and led by W.E.B. duBois and a board of White liberals, it filed an amicus brief in Guinn. 113 and subsequently was involved in essentially every major voting rights case.114 Substantial funding was obtained in 1929 from the American Fund for Public Service. Charles Houstonll5, Dean of Howard Law School, was hired as staff attorney in 1935 and was joined in 1936 by Thurgood 116 Marshall. Voting Rights cases were only a part of the agenda, which included desegregating educational institutions (Missouri ex rel. Gaines v. Canada 117, Brown v. Board of Education) and
death penalty (Furman v. Georgia 118) . But the NAACP has been the key player in Voting Rights litigation. Eighty years after Guinn, racial and viewpoint?based discrimination in elections remains commonplace. The Voting Rights Act Unfulfilled Goals 119 outlines the continued presence of methods of undermining free and fair elections. Some of the same techniques opposed by the NAACP in 1915 remain in use, although no longer ubiquitous.
Some of the methods which discourage minority participation are the result of extralegal methods employed by individual election authorities122 participating in a culture which is hostile to minority political participation. Others are institutionalized in the laws and rules themselves.
Registration ? Among the tactics used include harassment and intimidation while registering to vote. In the Goals Report Port Gibson, Miss., example, "registration of a white may be a simple process, but that the registration of blacks may take up to one hour to complete.023 When "a group of blacks comes into the office to register, the registrar may come out at nine, take a break at ten, and then take a long lunch".124 To register, the law requires applicants to list their employer.125 This can make Black voters feel that they may be risking their jobs. Another disturbing aspect of registration in Port Gibson is the presence of sheriff’s deputies. In Johnson County Georgia "blacks feel that if the sheriff thinks they're registering to get him out of office, there's no telling what he might do to them. 126
Once voters have managed to register, they may face being purged, either periodically or as a result of not having voted recently. In addition to having to undergo the registration process, voters may not be aware that they have been purged, resulting in their being turned away from the polls.
Passage of the Motor Voter Act in 1993 substantially opens up the voter registration process, lowering the costs of participating in the political process. The Motor Voter Act allows for post?card registration and registration at government agencies such as driver's license bureaus. However, one disturbing aspect of the act is the "opportunity" to register to vote at social service and other welfare agencies. There is the at least potential problem of government benefits being conditioned on voter registration, or at least the appearance to voters of such a condition even where none is intended.
As states have implemented the Motor Voter Act, problems have arisen. The voter registration material sometimes contains personal information such as social security number and in some cases party affiliation. There appears to be no requirement for the registration materials to be treated in confidentiality, such as being placed in a sealed envelope for delivery to election officials. Without such procedures, invasion of privacy and consumer fraud is facilitated.
The Missouri Voter Registration Application127 requires a social security number, without providing a Privacy Act128 statement. Greisinger v. Davis and Libertarian Party of Kentucky129 found that there is no compelling state interest for requiring the use of social security numbers on election materials, and struck down such requirements.130
Voting ? Harassment and Intimidation at the polls.
Selection of voting places in all?White institutions such as clubs and churches can deter minority voters. The same tactics used in the Port Gibson voting registration offices can be effective at the polls as well, with minority voters more frequently challenged, misdirected to the wrong location, or otherwise discouraged, generally in a manner that is short of outright deprivation.
In Johnson County, Georgia, Black observers were told, inaccurately, that they were blocking the entrance and would have to leave. 131 Police were called to enforce this until federal election observers pointed out that the observers were breaking no laws. Later, White men with guns arrived and began heckling Black voters. 132 The pattern shown here is that local officials frustrate the interests of minority participants. When federal intervention intercedes, extralegal measures are used.
In Medina County Texas between 1954 and 1980, 1.5% of the presiding election judges were Hispanic, in an area where Hispanics are 50% of the population. 133 The right to vote includes the right to have ones vote counted. This is undermined when minority interests are restrained from participating as judges and observers.
Absentee voting is another frequent source of abuse. The Goals Report cites Taliaferro County, Georgia as an example, where there are no Blacks on the county commission though the population is 72% Black. Absentee ballots are more than a third of those cast and are hand delivered by White candidates to poor and illiterate Blacks who are "assisted" in filling them Out. 134 In Frio County Texas, on the other hand, Hispanic migrant workers have difficulty in obtaining the absentee ballots to which they are legally entitled. 131
A crucial aspect for minority interests in the democratic process is how districts are drawn, what election rules are followed, and how candidates are chosen. The rules by which a given election will be played help to determine the probable outcome. 136
Democracy in the United States has focused on a winner? takeall approach, also called "first past the post", in distinction to the forms of proportional representation common to parliamentary systems. This has led to the formation of what is referred to as the two?party system, in which a ruling coalition grapples with a coalition of its enemies. However,. Sonia Johnson, who came in 5th as the 1980 Citizens Party presidential candidate, describes this having historically resulted in a three party system, with two big parties jockeying for power and a small party setting the policy agenda. 137
Nonetheless there are important variations and nuances of the rules which affect outcomes, especially for racial and political minorities. For instance, run?off elections work against the interests of large but less than majority voting blocks. When a substantial voting block, such as Blacks or women138 . unifies behind a single candidate, it can hope to win a plurality in a party primary in which factions of the ruling group compete for dominance. But where a run?off is held, the ruling faction then can unite to defeat the newcomer. Jesse Jackson had a serious shot at the 1988 Democratic nomination while the White vote was split between Gore and Dukakis, but once Gore withdrew Jackson's chances evaporated.
For a smaller faction, run?offs can actually have an empowering effect. The entry of Libertarian and other third parties as well as independent candidates, are resulting in many races being decided by pluralities.139 In Georgia, a unique run?off statute, since repealed, forced a run?off when incumbent Democratic Senator Fowler got 49% to Republican challenger Coverdell's 48%, with 3% going to Libertarian Jim Hudson. Coverdell won the run?off with the endorsement of Hudson. A well?coordinated faction which can threaten to cause a run?off and to barter its endorsement may be able to exercise significant power. Nonetheless, run?offs tend to undercut minority interests.
At?large voting as opposed to single district voting offers problems and opportunities for minority interests. The focus of actions under the Voting Rights Act (also relying on the Fifteenth and Fourteenth Amendments140) has been to require single district elections, and that the districts be drawn so as to create minority districts where practicable.141 This approach is problematic on several grounds. It assumes racial segregation in housing, and that such segregation will continue. This in turn is seen by some as the result of historical oppression, jim crow laws and their modern counterpart, zoning under the comprehensive land use plan. Others point to ethnic enclaves that form in large cities as evidence that self?selection rather than oppression is the cause of identifiable minority neighborhoods. The single district approach fails to accommodate those interest groups, such as women and political minorities, which are geographically disperse.
The rules by which at large elections are conducted can aid to continue dominance by a ruling faction, or can embrace diversity, depending on how they are structured. Cambridge Massachusetts has used an at large system since the 1940's which incorporates proportional representation and has usually had African?American representation although the city is only 17% Black.142 Typically in such a system there are n seats on the council and in regular elections the top n vote?getters become elected. Accordingly, a candidate with the support of at least 100/n+l% of the voters will get elected. Thus where n is 4, 20% (plus one vote in the event of a tie) assures a seat.143 The Goals Report documents numerous cases of at?large voting used to perpetuate White rule.144
Harassment of candidates is another area examined in the Goals Report. "On April 19th, Shots were fired into Mr. Folsom's house, wounding his daughter. Mr. Folsom chose not to run for sheriff.”146 A "cross was burned on the lawn of James W. Fennell, a candidate for South Carolina House District No. 120.046 Running as a Black Independent in Democratic South Carolina was doubly dangerous.147
Abuse of absentee ballots is not limited to perpetuating control by a ruling racial group, but can also be used by a political party to retain power after it no longer represents the majority. This practice was exposed and defeated in a recent case 148 in Philadelphia, Marks v. Stinson . The Democratic state senator being removed was judicially removed from office and his Republican opponent declared elected, which switched control of the Pennsylvania Senate to the GOP. The case is a model of action by the federal courts of applying the law and imposing a meaningful remedy. A similar situation occurred in Clarke County Nevada in the 1992 elections. Tamara Clark, the Libertarian candidate for state senate in District 22, received a majority of the regular vote in the election but was declared defeated after absentee ballots were counted. Investigation turned up that these had been solicited by a restaurant workers union, which first used post? card registration to sign up new voters and then requested absentee ballots for them. Some of these voters have never been located in person. In at least one instance the address listed turned out to be a vacant lot. 149 An election contest filed with the state legislature was summarily dismissed, but the incident did result in the resignation of the county's elections commissioner. Clark is running again in November 1994. Clark so far has not brought suit concerning the incident. Whereas under? representation of racial minorities among voting officials is informal, minority parties are frequently formally excluded from being election judges.150
Minority political parties, like Black voters in Johnson County Georgia, feel targeted by law enforcement officials. From Debs151 to New Alliance Party v. FBI, dissident voices have been
the target of police response.152 Such enforcement policies have a chilling effect on the political process, when laws are selectively enforced against those who seek to change them.
Difficulties in registration and purging complicate the petitioning process used by minority parties. In order to get on the ballot, the most common method is to collect signatures of registered voters. Table A from Ballot Access News lists the number of signatures needed per state. This may be a set number, a percentage of those who have voted in a recent election, or a percentage of registered voters. Commonly the signatures are then scrutinized by election officials who discard the names of those who have not registered, those who have been purged, those who have moved since last registering, and those whose signatures do not seem to match the signatures on file.153 In Missouri's Congressional district 1, which has a concentration of Black residents, half to two? thirds of petition signatures are often invalidated, where the figure is about a third for the rest of the state. 154 The high rate of invalidations in the Black areas led to the result in Libertarian Party v. Bond155 in which it was found that the party was 52 signatures short in one area after the disqualifications.
Political and racial minorities share a common interest in using constitutional law to combat unfree, unequal elections. Given the retrenchment of a once activist federal jurisprudence, it is time to rediscover that state constitutions protect voting rights.
Part II ? State Constitutions
The state constitutional renaissance and Justice Brennan.
The renaissance156 in state constitutional law dates to about 1970. State Bills of Rights predated the federal one. Prior to passage of the Civil War Amendments, state constitutions were the
primary source of rights protections against state action. As the Federal Bill of Rights became incorporated, and was applied in an activist manner finding sweeping legal changes implicit in the First and Fourth through Eighth Amendments, state constitutions were increasingly ignored, both by litigants and judges.157 But as the Supreme Court retrenched, state constitutional bills of rights came to have new meaning, as a source of authority supporting policies articulated by supreme court dissents. By 1990, there were more than 600 cases setting state standards above a federal floor. 158
The point for the student and practitioner is not whether state court constitutional rulings are 'liberal' or 'conservative,' but that state constitutional law is now a field ripe for cultivation. Law schools must teach it. Scholars must write about it and publishers must publish. And practitioners must learn how to analyze and present state constitutional issues.159
If this is a rebirth, Justice William Brennan is its
midwife. 160 Hans Linde, retired from the Oregon Supreme Court, has been another outspoken proponent.161
Initially the focus of these decisions was to foster forum shopping of specific questions decided adversely by the U.S. Supreme Court. Kentucky's Wasson 162 rejects Bowers v. Hardwick'63; California" found discrimination on the basis of sex to merit strict scrutiny, following the plurality in Fronterio 165 rather than the majority in Craig v. Boren 166
The next decade is likely to see more attention to state provisions for which there are no precise federal analogues, such as express privacy clauses 167 , Equal Rights Amendments banning sex
discrimination 168, access to civil remedies. 169
The Free Elections clause 170 I found in substantially similar form in numerous state constitutions, is an example of such a provision. This article does not focus on those portions of state constitutions which parallel federal provisions and may grant voting rights. These include free speech 171 , due process 172, and 173 equal protection .
167 E.g. this author's Computers, Privacy and Freedom under State Constitutions: Protecting E?Mail under California's Article I § 1., unpublished, 1994.
There are several different models states use in addressing situations in which state and federal claims are present: primacy, dual reliance, and a supplemental approach. In a supplemental approach, state courts look primarily to the federal constitution, as interpreted by the U.S. Supreme Court, but when a desired result conflicts with federal precedent, the courts turn to the state constitution as a source of adequate and independent grounds. 174 Closely related to a supplemental approach is the evasive approach, in which state claims are simply ignored once a federal claim fails. 175 Also closely related is a policy of not interpreting state provisions more extensively than f ederal law. Under this approach, once it has decided the federal question it has also decided the state question, which can be dispensed with in a sentence or footnote.
Primacy is the reverse of the supplemental approach. Primacy is based not only on federalist principles, but on the idea that federal constitutional questions should not be reached if the case can be decided on other grounds. 176 This approach, advocated by
Judge Linde 177, asserts that if a claim can be resolved under the state constitution, no federal question has arisen. only if the state constitution does not provide for the right asserted would it then be necessary to turn to the federal question.
one problem with this approach is that it could slow development of federal rights, and even lead to lowering of the federal floor. Consider a situation in which two state courts hear a new claim of right under state and federal constitutional free speech provisions. State A, which favors the right, will decide the case under the state constitution, and create no federal precedent. State B, which does not favor the right, f inds no violation of the state constitution, and reaches the federal question, most likely deciding adversely. Adverse precedents will accumulate without the benef it of the more progressive analyses.
Dual reliance mixes analysis under state and federal constitutions, often failing to distinguish which is which. There are advantages as well as disadvantages to this approach. Without a "plain statement" of independent state groundsI78 I there is a risk of reversal if the U.S. Supreme Court takes the case. However, it allows adoption of a federal dissent for which there is little no state precedent, and U.S. Supreme Court review is relatively few of the cases in which review is sought. At times, federal cases do illuminate the concepts involved in the state claim where similar fact patterns have been previously adjudicated. 179
Harrington180 advocates a federalist method, in which cases are analyzed separately under state and federal constitutions. While this requires more effort on the part of the court and the parties, it promotes the full development of both sources of law.
In the event that a practitioner faces a court which is not clearly in one of these schools, she should seek a federalist approach. One method is to bring two entirely separate lawsuits, rasing only state claims in one, reserving federal questions. But even within a single suit, there are methods for distinguishing the two aspects. Pleadings should set out separate counts, with separate damage claims under both the federal and state causes of action. Possibly different attorneys could argue the state and federal claims, or different expert witnesses emphasize the independent aspects of the state and federal claims.
Briefs should be organized with separate sections. A first section should address the facts and evidence presented, a "Brandeis brief" which concretely demonstrates the burden of the challenged state action or law. This presumes that cases have been pre?selected in which there really is a burden ? frivolous or questionable claims such as the right to vote for Donald Duck should be avoided. A plaintiff seeking to establish a right to vote for Donald Duck should do so by challenging the law in the context of a real and genuine write?in campaign, such as that which elected Strom Thurmond to the senate. The regulations struck down in Williams v. Rhodes were not that different from those upheld in Jenness v. Fortson. What differed was the Court's perception of the harm done in the particular facts of the case.
Next, state claims should be argued, relying on state authority, augmented by cases from adjacent states with similar clauses. There are two general goals; either to have the problematic rule re?interpreted to eliminate the burden, or if that is not possible, to have it declared unconstitutional. Use of federal buzzwords such as "strict scrutiny" should be avoided in favor of phrasing claims in language used by state courts addressing state claims.181 The objective is to guide the court away from borrowing to heavily from federal jurisprudence, but to find truly independent grounds.
At the same time, where a plaintiff is engaged in a nationwide effort, facing similar situations in other states, a favorable decision solely on state law will have less precedential effect than one on dual grounds. once a factual basis is established that the contested rule poses a severe burden, and that there is a basis in the state constitution for reconstruing or striking down the offending rule, it requires little extra effort to apply Norman v.Reed strict scrutiny 182 or Anderson's balancing test183 and find that any government interests, even if compelling, can be satisfied in a less burdensome manner. As long as the decision follows the pattern of separating the state and federal claims, and contains a clear statement of reliance on state grounds, it will be insulated from U.S. Supreme Court review. 184
Presentation of both sources of law maximizes the chances of victory for a plaintiff/petitioner, in that it gives the court several options. A court may wish to avoid setting a precedent of applying heightened scrutiny to its election laws, and decide the case by statutory construction or state constitutional grounds. Alternatively, it may wish to avoid giving substance to long dormant state guarantees of free elections, and cite Norman v. Reed to invalidate a burdensome regulation on federal grounds. It may do both. Or, of course, it may do neither. In the event of an adverse decision, plaintiffs can hope that an evasive approach will be used, framing the decision as one of state law rather than even raising constitutional claims, so as to minimize adverse precedential value.185
There are three tiers of state constitutional voting rights. The first is the general provisions of natural rights, source of government, due course of law, equal liberties, free speech, assembly and petition, which may be construed so as to conf er voting rights. The second is the "free and equal elections" provisions of state bills of rights, which are the primary focus of this article. The third is specific provisions of "suffrage and elections" articles. It is logically sufficient for a litigant to convince the court that one of these three levels provides state constitutional protection of voting rights. Ideally, however, the court should find that all three levels independently protect voting rights, and that as a whole they grant a strong degree of protection, fulfilling the promise of Williams v. Rhodes.
Appendix 1 looks in detail at these provisions, with the emphasis on the second tier.
general categories:
These can be grouped into several
a) states which have no cases or minimal scrutiny: Alabama, Arizona, Delaware, Florida, Kansas, Iowa, Louisiana,
Maine, Massachusetts, Mississippi, Rhode Island, Virginia, and Utah;
b) states which have significant cases under "free and equal"
clauses: Colorado, Indiana, Illinois, Kentucky, Oklahoma, South
Dakota, Washington, and Wyoming;
c) states which have useful cases under other elections provisions: California, Georgia, Idaho, Michigan, New York, Ohio, S. Carolina, and Tennessee.
Alaska has no cases on point but has a strong state constitutional law tradition. Oregon, Colorado, and Hawaii have had adverse decisions on ballot access cases brought under state constitutions. The Colorado case can be attributed to failure to brief and argue the state claims.
'Free and equal' means that every qualified voter may freely exercise the right to vote cast without restraint, and that that vote shall have same influence as every other vote. People v Emerson 186 ; People v. Smal 1187. One of the recurring themes in state interpretation of the free and equal provision is that it creates a "one voter, one vote" rule. Another is the voter should be free of constraints placed on his choices. A sufficiently broad reading of these clauses could find them applicable to ballot access cases.
Normative state constitutional law: where we go from here.
We must create new bonds to hold our nation together. One way to do that is to develop a system in which 80 percent instead of 50 percent of the people participate on election day. To reach that goal of 80 percent voter participation, we must tear down the remaining barriers to participation. our government must at every level promote rather than discourage participation. Those of us in government sometimes have other issues on our minds; some of us may even feel threatened by the prospect of increased voter participation. Therefore, everyone who cares about expanding American democracy should apply steady pressure on public officials to make sure we in government take whatever actions are necessary to throw openthe doors to the polls. Therein lies the path to true democracy in America.188
There are several prior examples of coordinated campaigns to expand civil rights under the federal constitution. State constitutions could provide the legal foundation for a comparable effort in improving access to the ballot by those not affiliated with the two ruling parties. Thurgood Marshall, as counsel for the NAACP, waged a carefully planned and thought?out battle in the voting rights cases of the civil rights era, leading not only to victory in those cases, and recognition for the of the general principles underlying those cases, but also passage of the voting rights act, as well as his appointment to the supreme court. Ruth Bader Ginsberg, in a series of cases in the early to mid seventies, established the intermediate scrutiny standard for sex? based discrimination. Her work was supported by the ACLU. James Harrington, Legal Director of the Texas Civil Liberties Union, outlines suggestions for practice and sample pleadings in The Texas Bill of Rights which are a model for practice in this area.
It is this author's belief that, with adequate resources, it would be possible to conduct a similar campaign to bring successful actions under state provisions for free and open elections. Since the clauses are similar textually, and there is little law in most states, recent cases in other states would be a source of persuasive precedent. Such cases could build on one another to establish voting rights going beyond the federal floor. As these cases accumulate, they can illuminate the fundamental rights which underlie federal jurisprudence as well, and serve as an example to federal courts, helping to lift the federal floor. Many aspects of federal jurisprudence were initially expounded under state constitutions.
Who will be the players in using state constitutions as a source of voting rights? The list of potential participants includes the minor parties, independent candidates, civil liberties
organizations, and progressive election officials.
one set is organizations such as the ACLU, which has supported
liberalizing ballot access laws since 1940 189,and Common 190 Cause . In particular, COFOE, the Coalition for Free and Open
Elections, is probably the most active litigator in this area and may be receptive to the approach outlined herein. The Democracy Project is a new player, as yet unfunded and little more than a pet project of its founder.191
The political parties, such as the Libertarian, New Alliance, and Green parties, are another set. The Libertarian party has had successes and failures. It has been the most active litigator in ballot access, as well as lobbying effectively, and has won notable victories, but has done so in a disorganized manner with little in the way of coordinated planning or institutional memory.
The New Alliance Party 192 which has a smaller organization and base of support, has been more effective in coordinating and planning, and has utilized a keen understanding of federal financing of elections to fund itself. It is closely linked to the Washington D.C based Ross & Green, a lobbying firm which has been influential in supporting reforms such as motor?voter. More recently the NAP has been reaching out beyond its base of urban leftists to attempt a merger with Perot supporters forming a Patriot Party. It is unclear what the result will be.
A successful public interest litigation strategy" derived from his
own practice and his study of successful campaigns such as the NAACP. [text string missing re Clint Bolick?]
1) Articulate clearly defined long?range goals.
2) Focus on direct litigation in federal courts
3) Develop a systematic point by point strategy
4) Find sympathetic plaintiffs.
5) Present unblemished facts.
6) Find cases amenable to summary judgment.
7) Generate scholarly support.
8) Argue the case in the court of public opinion.
9) Generate amicus support.
10) Separate fundraising from the case selection function.
. As an example of how these ten points can be used in practice, I will describe the first case of this sort I have been involved in. Although I had not read Bolick when I brought CokerGarcia, 849 S.W. 2d 81 (1993), 1 had learned many of the same principles from other sources.
The case did not result in our short?term objective of getting our candidates on the ballot, but fostered a long term objective of taking having Missouri courts evaluate strict scrutiny somewhat more seriously. My choice of state court, while controversial, was designed to take advantage of a statutorily mandated expedited procedure, and additionally avoided the federalism?based reluctance of federal courts to interfere in state governance. Further, we knew from past experience that federal court was a hostile forum, and had not yet tried the state court.
The point by point strategy involved asking the courts to apply existing law fairly and rationally; it was not necessary to challenge any of the statutes; merely ask that they be enforced.
Missouri v. Stewart, 869 S.W.2d 86 (Mo. App. 1993), was an unsuccessful attempt to use Coker?Garcia as precedent; Garcia is also cited in the Democracy Project brief in Greene (see App.1, S.Carolina.)
I chose the plaintiffs with a mix of opportunity and opportunism. Laura Coker?Garcia was my friend and I had asked her to run, so it made sense to have her as a plaintiff. But placing her name first on the petition was calculated; a Spanish?surnamed female running for sheriff would attract notice and sympathy more than some party secretary like Jay Manifold (Manifold v. Blunt, 863 F.2d 1368 (8th Cir. 1988), rehearing denied, 873 F.2d 178 (8th Cir. 1989) .) Other plaintiffs included Joan Dow, the only woman running for governor of Missouri in the "year of the woman", Tony Garcia, Harry Moffet, a colorful farmer and cowboy, and Phil Horras, a disabled veteran in a wheelchair who served as chairman of the party. In retrospect, it would have been worthwhile to introduce each plaintiff as a witness to emphasize these aspects, but time pressures and the fact that this was being done on a minimal budget precluded this approach. (I put up the $150 f iling and appeal fees out of my pocket, later reimbursed, and the attorneys donated their expenses as well as their time.) There was no real dispute over the facts, and we were entitled to win on summary judgment; there was a hearing and argument but no real trial.
We did not generate scholarly support at the time. I am involved in doing so after the fact. This document is an example. The case was an unqualified success in terms of trying the case in the court of public opinion. In previous years the Libertarian Party in Missouri had been largely shut out of mainstream press coverage. This changed when Andre Marrou won the town of Dixville Notch in the New Hampshire primary, generating national front page coverage. The case resulted in substantial coverage from August to late October as well as editorials favoring our position. Papers which would never have endorsed the party supported its right to run. (one paper, the K.C. Jones, endorsed the deceased Ogden Scoville, whom Dow was seeking to replace, over either of the major party candidates.) This coverage may have been a factor in the record vote totals the Libertarians received in November, high enough to establish them as minor party in Missouri.
A promise of litigation support from the ACLU fell through. Initially they were to have handled the case, then they were going to file an amicus brief, but this never happened.
In the past, the Missouri party primarily relied on the ACLU in a crisis management approach, resulting in efforts that were too little too late, losing cases, losing the investment in petition drives, and setting bad precedents. It is clear that ongoing interactions with such public interest litigators need to be worked out well in advance.
Fundraising remains an obstacle, and to date has been based on personal contributions. 197 Several approaches could be effective in turning around the current budgetary constraints. These include,
1) Mastering the art of obtaining legal fees in civil rights litigation. For example, in California the Libertarian Party successfully sued to overturn sales taxes enacted in violation of proposition 13. Taxpayers were saved eight billion dollars, while the lawyers for the party were awarded over $400,000 in legal fees. Federal civil rights actions interact with actions under state constitutions in several ways.
a) Actions can be brought under a dual protection theory, in which both state and federal constitutional claims are brought as independent and sufficient grounds, citing §1983 as the basis for legal fees, even if the decision is based on the state claims.
c) Some states, either through statutes or constitutional interpretation, may allow for award of legal fees in state constitutional cases. 198
2) Suing for monetary damages. For the most part, actions brought by minor parties have focused on injunctive or declaratory relief, and the expense of obtaining such relief has been seen as part of the hurdles which make the promise of free and equal democratic processes illusory in actual cases.
However, civil rights statutes allow for monetary damages in cases of rights deprivation, as do their state analogues. Since these cases involve denial of basic rights, there is no reason damages should not be claimed.199 This allows minor parties to view their legal departments as potential profit centers rather than expenses, and redeploy resources accordingly. Two tactical considerations further suggest the utility of this approach.
Mootness is frequently an issue in election cases, since state authorities can use delaying tactics as well as the inherent slowness of the courts to postpone a decision beyond the election in question. Moore v. Ogilvie 200 answered this question by reference to the "capable of repetition yet evading review" approach used in Roe v. Wade 201 and this has been generally 202 follow. In some cases however the fact patterns are unique and can face dismissal on mootness grounds. So long as damages are claimed, mootness does not arise, because an actual controversy
exists.
Damage claims can provide a powerful tool for obtaining effective settlements. In a typical pattern, minor parties are given a herculean task to overcome in order to get ballot access, and when they surprise everyone by overcoming that hurdle, are next kept off the ballot on a technicality. The next step is to go to court, if they can find a lawyer, and seek to obtain what they are entitled to. The election authorities have a bottomless pit of taxpayer?funded attorneys, and are already familiar with the intricacies of the statutory schemes they has helped to write. The chances for the minor party, even where the constitution is unquestionably on their side, to win in court in time for the election to be held, are not good, and courts rarely invalidate elections in which minor parties were excluded. Even if they win, their budget and resources are depleted, giving an additional edge to their major party opponents.
In contrast, a party which plans for this eventuality can present the official with a suit claiming 2 million in damages against him or her personally, and a consent degree in which the official agrees to reverse the contested action. Finding a lawyer for this suit is easier given the mix of the appeal of service pro bono publico mixed with the prospect of a contingency fee in the event of a win or cash settlement.
Ralph Nader founded his Public Interest Group empire (e.g., Center For Auto Safety, Public Citizen Litigation Group, MassPIRG) with a single successful libel suit against General Motors, settling a $25 million claim for $425,000. Pennhurst State School and Hosrpital v. Halderman 203 funded a center for rights of the disabled. Similarly, one good jury verdict or negotiated settlement could provide seed money for the kind of program I have outlined above.
3) Pro Bono involvement by lawyers and law f irms is another potential source of legal resources. Most pro bono efforts f all into one of two categories. Indigents, who would otherwise have difficulty obtaining competent representation, are one. Another is groups such as symphonies, churches, and country clubs, where the investment is seen as worthwhile in terms of public relations and meeting new clients. A minor party might or might not fall into either of these categories. A third type of pro bono activity, however, is in taking cases which promote public interests. The sort of cases outlined in this thesis, vindicating fundamental rights, are in this category. Minor parties and independents should contact the pro bono chairs of their state's law firms, starting with the largest, most prestigious. The firm benefits by demonstrating its commitment to the public interest. More tangible benefits can include: publicity, particularly where part of the litigation strategy is a high public profile, generating news coverage designed to portray the clients favorably, cultivation of the client's supporters as potential clients, and the possibility of winning legal fees or contingency fees if successful.
In turn, a letter sent on the letterhead of a well?respected law firm may in itself be enough to cause an election official to reconsider continuing to pursue an unconstitutional course of action, or be a deciding factor in accepting a consent agreement. When this happens, the pro bono goals are met with a minimum of effort.
4) Support from foundations is another potential avenue of funding. These will not support political parties or candidates directly, but will support non?profit public interest law firms.
In "Nine For Equality Under Law: Civil Rights Litigation", Robert McKay, 204 describes the activities of public interest law firms supported by the Ford Foundation, such as the NAACP Legal Defense 205 and Education Fund.
There are a variety of tactics and resources available to those wishing to pursue a strategy of promoting minor party ballot access under state constitutions. Resources include the potential for awards of legal fees and damages, litigation support from public interest organizations and members of the bar acting pro bono, and economic support from foundations.
Summary and Conclusions:
Federal jurisprudence in the area of ballot access and voting rights as protected First Amendment activity is an area fraught with uncertainty. Voting is a fundamental right, consequently only compelling state interests can justify its denial. But, unlike Fifteenth Amendment jurisprudence in which there is never a compelling state interest in invidious race?based discrimination, ballot access cases always involve, to some extent, the compelling
state interest in preventing fraud and conducting an orderly election. Consequently courts employ the more flexible balancing test of Anderson. In practice there has been no consensus as to how to apply this test. Recent cases, Norman and Takushi, have not eliminated this problem, but continue the duality which has characterized this area since Williams and Jenness. Takushi reads Norman as applying a traditional strict scrutiny analysis when there is a "severe burden"! but neither case provides adequate guidance for what constitutes such a burden. Until some further case offers a more certain procedure, cases will continue to turn on the facts of the specific cases, the ability of counsel to successfully communicate the severity of the burden, and the personal preferences of the judges. Litigants should not rest their hopes for effective relief from burdensome state regulation on the assumption that a court will opt to follow Norman rather than Takushi.
analysis may parallel, but need not replicate, federal jurisprudence. Specific provisions of Suffrage and Elections articles provide additional ammunition. Their specificity and detail provide authority for textualist judges who would otherwise hesitate to interfere with legislative and executive actions. –30-
Endnotes: