Cromer v. South Carolina

917 F.2d 819, 1990 WL 163880

• Court: Court of Appeals for the Fourth Circuit
• Decided: October 30, 1990
• Docket: Nos. 90-2429, 90-2444
• Status: Published

Opinions

PHILLIPS, Circuit Judge:

South Carolina law allows independent candidates for election to the state House of Representatives (among other offices) to be nominated by voter petition and thereupon to have their names placed on the ballot as candidates in the state’s November general election. Until 1988, access to the general election ballot by this route required only that an otherwise qualified candidate file a sufficiently supported nominating petition by August 1 preceding the general election. In 1988 the election laws were amended to require, in addition, that such a candidate file a “statement of candidacy” by the preceding March 30, a date which precedes the date on which political party primary elections are held.

The issue in this case is whether this early filing requirement constitutes an unconstitutional burden on independent candidate access to the general election ballot. On a challenge by an otherwise qualified independent candidate for the state House of Representatives, and some of his supporters, the district court held the requirement unconstitutional and ordered that the candidate’s name be placed on the ballot. On this appeal by the state and the local elections commission, we agree with the district court’s conclusion and affirm.

I

In South Carolina, candidates for offices to be voted on in general elections, including the state House of Representatives, may be nominated and thereby appear on the general election ballot by political party primary, or political party convention, or (as “independent” candidates) by voter petition. Party primary elections are held on the second Tuesday in June of each general election year. S.C.Code Ann. § 7-13-40. Since 1977, party primary candidates have been required to file a notice of candidacy by noon of March 30, approximately 70 days before the primary. S.C.Code Ann. § 7-11-210. Before 1988, independent (or “petition”) candidates were not required to file any separate notice of candidacy at any time; they merely had to file a petition with the requisite number of signatures (5% of the registered voters for the office) by August 1 preceding the general election; this constituted their notice of candidacy, and entitled them to have their names placed on the general election ballot. S.C. Code Ann. § 7-11-70.

In 1988, however, the state legislature amended the election laws to impose upon independent candidates the same notice of candidacy filing requirements formerly applicable only to party primary candidates, i.e., that they file such a notice by March 30. S.C.Code Ann. § 7-11-15(3). There is no legislative history explaining the basis for this change in the law. Under the law as it now stands, therefore, independent candidates still may file their voter petitions by August 1, but may not appear on the ballot unless they also have filed a notice of candidacy by March 30.

On March 30, 1990, the same day statements of intention of candidacy were due, the incumbent state representative in South Carolina House District 80 announced he would not run for reelection. Only one candidate submitted his statement before the end of the day. He was therefore the only candidate of his party permitted on the primary ballot, and in due course, when no other party nominated a candidate, became the sole party candidate for election in November.

Upon realizing what had happened, certain residents of the district sought to field a competing independent candidate. On June 21, 1990, James Cromer submitted a statement of candidacy and a nominating petition to the Richland County Election Commission. His petition contained 2,000 signatures, or twenty percent of the registered voters in the district. The election commission rejected his statement and petition.

Cromer and several of his supporters then filed this action against the election commission, its members, and its executive director, seeking declaratory and injunctive relief. The state was then permitted, without objection, to intervene, and the individual commissioners were dismissed.

On the plaintiffs’ motion for summary judgment on the undisputed facts of record just recounted, the district court granted the motion, concluding in a brief memorandum opinion that the notice of candidacy filing requirement unconstitutionally hindered the plaintiffs’ right to run as, and to vote for, an independent candidate. The court’s judgment enjoined the defendants from declining to accept Cromer’s otherwise regular petition and ordered that his name be placed on the general election ballot as an independent candidate. The defendants complied with this judgment, but took this appeal from it.

II

The issue, simply put, is whether South Carolina’s requirement that to gain access to the general election ballot an independent candidate must formally declare his candidacy approximately 70 days before party primaries and approximately 200 days before the general election imposes an unconstitutional burden on the rights of such would-be candidates and their supporters.

We start our analysis by accepting the following propositions and principles as controlling:

1.The most directly controlling authority for analysis and decision here is that provided by the Supreme Court’s decision in Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983), which held unconstitutional an Ohio statute that required an independent candidate for President to file both a statement of candidacy and a nominating petition in March in order to appear on the general election ballot in November.¹

In accepting the general authority of Anderson we specifically reject the state’s contention here that that decision applies only to ballot access restrictions upon candidates for national office. With other courts, we believe instead that while national candidacy is an important factor in assessing the legitimacy of such restrictions, Anderson did not turn solely on that factor, but provides general guidance for assessing ballot access challenges by local and state as well as national office candidates and their supporters. See, e.g., Dixon v. Maryland State Admin. Bd. of Election Laws, 878 F.2d 776, 779-80 (4th Cir.1989); Rainbow Coalition v. Oklahoma State Election Bd., 844 F.2d 740, 743 (10th Cir.1988); Goldman-Frankie v. Austin, 727 F.2d 603, 607 (6th Cir.1984).

2. On the other hand, we think the facts in Socialist Workers Party v. Hechler, 696 F.Supp. 190 (S.D.W.Va.1988), aff'd in part, 890 F.2d 1303 (4th Cir.1989), which upheld certain West Virginia voting regulations, including a filing deadline, against constitutional challenge, are distinguishable in critical respects from the facts in this case, and we therefore reject the state’s contention that Hechler controls decision here. Specifically, we note, as did the district court in Hechler, that the challenges in that case were by third party candidates rather than, as here, an independent candidate. As we later note, and as the Hechler court also pointed out, harsher restrictions may be imposed by a state upon third party candidacies than upon independent candidacies because of the different state interests involved. See id. at 197-98.

3. From Anderson and cases upon which it in turn relied, we draw the following principles as the ones most critical to decision here:

The primary concern in assessing this or any restriction on ballot access by candidates is not the interest of the candidate but of the voters who support the candidate and the views espoused by the candidate. Anderson, 460 U.S. at 786-88, 806, 103 S.Ct. at 1568-69, 1579.

The voter interests at stake are basic associational rights secured against state action by the first and fourteenth amendments, and any restriction on ballot access by candidates necessarily burdens the rights of their supporters to some extent. Id. at 786-87, 103 S.Ct. at 1568-69.

Nevertheless, though these rights are fundamental, and any restrictions upon ballot access for particular candidates necessarily constitute a burden upon their supporters’ rights, the states have countervailing interests — in protecting the electoral process from chaos and disorder, and major political parties from unfair debilitation— that may justify particular regulatory burdens upon these voters’ rights. Id. at 787-88 & n. 9, 103 S.Ct. at 1569-70 & n. 9.

While one of the electoral interests which states may protect by reasonable regulation is that of the integrity of established and formally recognized major political parties, these may not extend to the effective exclusion of independent (and new party) candidacies, which serve important safety-valve purposes not adequately served by major party candidacies alone, or by the availability of write-in candidacies. Id. at 790-94, 799 n. 26, 103 S.Ct. at 1570-72, 1575 n. 26.

And as between new (third) party candidacies and independent candidacies, independent candidacies must be accorded even more protection than third party candidacies. This flows from the states’ heightened interest in regulating the formation of new parties having the potential not possessed by independent candidacies for long-term party control of state government, see Storer v. Brown, 415 U.S. 724, 745, 94 S.Ct. 1274, 1286, 39 L.Ed.2d 714 (1974), in combination with the peculiar potential that independent candidacies have for responding to issues that only emerge during or after the party primary process. Anderson, 460 U.S. at 790-92, 103 S.Ct. at 1570-71.

4. To apply these basic principles in evaluating a particular ballot access restriction, Anderson mandates the following staged inquiry: first, an assessment of the “character and magnitude of the asserted injury to the rights” sought to be vindicated; next, an assessment of the “precise interests put forward by the state as justifications for the burden imposed by its rule”; third, an evaluation of the extent to which the state’s asserted interests make it necessary to burden the voters’ rights in the way chosen. The constitutionality of the challenged restriction is then to be made on the basis of a necessarily hard evaluative judgment of the relative weight of state interests and voters' rights. Id. at 789, 103 S.Ct. at 1570.

Ill

We now proceed with the Anderson analysis of the notice of candidacy requirement here challenged.

1. We first assess the character and magnitude of the asserted injury to voter rights.

The direct effect of the pre-primary filing requirement is that the opportunity to run as an independent candidate for the office in question is effectively cut off on March 30, seven months before the November general election, which of course means that the opportunity of voters to coalesce around such a candidacy is cut off at the same time. “History ... ends” for both potential independent candidates and their supporters on that date. See Anderson, 460 U.S. at 800, 103 S.Ct. at 1576. In practical terms this means that as of March 30, the emergence of independent candidacies to respond to newly emerging issues, or to major party or candidate shifts in position, dr to moral, or ethical, or mental, or physical collapses of party candidates in the seven-month interval between filing date and general election date are effectively precluded.

It is true that the specific logistical burden of filing is minimal; it involves a simple, easily done physical act, and a decision which commits to nothing. But that is not the problem. The problem is in having to make the draconian decision at a time when a rational basis for making it does not exist. At this time the party candidates have not been chosen, and even the identity of those who may become candidates may not be known. The election itself is seven months of unfolding events away.

The only bases upon which one might decide at that time to declare, essentially in the dark, an independent candidacy are (a) determination to seek nomination as an independent, whatever happens or doesn’t, (b) prescience or specific foreknowledge of future events affecting issues or other candidates, or (c) willingness to act as a standby just in case some need should later arise. While neither of these can be gainsaid as a theoretical possibility, neither suffices as a practical basis for insuring the viability of independent candidacies as the constitutionally protected best means for voter response to late developments affecting issues or party candidates.

As we assess the “character and magnitude of the asserted injury” imposed by this requirement upon the peculiar voter interest implicated in independent candidacies, we conclude that it is practically total. It effectively cuts off the opportunity for such candidacies to develop at a time that pre-dates the period during which reasons for their emergence are most likely to occur.

Anderson bears out that the most decisive injury to independent candidacy interests imposed by such an early filing deadline is simply the premature cutting off of opportunity. This was the focal point of the Court’s assessment that Ohio’s requirement imposed a “particular burden” on this unique form of candidacy. See id. at 791-92, 103 S.Ct. at 1571. It is true that the Court also took into account as factors contributing to the injury some not present in this case: that the candidacy involved was one for national office, id. at 794-95, 103 S.Ct. at 1572-73; that Ohio required both candidacy declaration and petition filing at this time, id. at 792, 103 S.Ct. at 1572; and that the filing requirement for independents preceded the party primaries by five months. ' Id. But each of these was seen by the Court simply as add-on injuries to the central and decisive injury inflicted by imposing so early a cut-off of the opportunity to enter the political arena. See id. at 790-92, 103 S.Ct. at 1570-72.

2. We turn next to the interests put forward by the state as justifications for imposing the pre-primary filing deadline.

In its argument to this court, the state identifies in general the state’s undoubted interest in promoting “the integrity and orderliness of its election,” and more specifically, in diminishing the possibility of “unnecessary feuding by parties and independent candidates on the general election ballot” and in “preventing splintered parties and unrestrained factionalism.” Appellant’s Main Br. at 16, 17. In developing these, it emphasizes in particular that the state’s pre-primary filing requirement treats independent candidates and party candidates equally. Id. at 17.²

We find both the “equal treatment” and “feuding and factionalism-reduction” claims of interest lacking in significance. The Anderson Court explained why this is so in rejecting similar claims respecting Ohio’s interest in imposing comparable preprimary filing deadlines for both independent and party candidates. See Anderson, 460 U.S. at 799-801, 103 S.Ct. at 1575-76 (equal treatment); id. at 801-06, 103 S.Ct. at 1576-79 (political stability). Everything said in Anderson on these two matters applies practically across the board to the comparable assertions made by the state here. Accordingly, we simply adopt Anderson’s rejection of their significance as authoritative reason for our rejection of their significance here. We summarize the reasons but briefly.

The “equal treatment” accorded by South Carolina’s imposing of the same prefiling deadline on primary and independent candidates is only superficial “equality.” There are obvious administrative reasons for requiring primary candidates to file at that time that simply do not apply to independent candidates. They are therefore unequals in this respect, and equal treatment of unequals is not equality. Similarly, primary candidates derive a benefit from their organized party support that offsets the burden imposed by the filing deadline in a way not shared by the independent candidate. Here again, the two types of candidacies are unequal in a way which makes imposition upon them of equal burdens not equality of treatment. See id. at 799-801, 103 S.Ct. at 1575-76.

While the state’s general interest in promoting political stability by “preventing splintered parties and unrestrained factionalism” must be recognized, it does not justify measures which effectively exclude other political aspirants than the major political parties from the political arena. A line has to be drawn here. Thus disaffiliation requirements and sore-loser provisions (which South Carolina has in place under S.C.Code Ann. § 7-11-210), are justifiable measures for preventing splintering and factionalism within the major parties; but pre-primary filing deadlines are neither of these, and may actually impair rather than promote party harmony by encouraging pre-primary defalcations by splinter groups and individuals. See id. at 801-06, 103 S.Ct. at 1576-79; of. Stevenson v. State Bd. of Elections, 794 F.2d 1176, 1178 (7th Cir.1986) (Easterbrook, J., concurring) (expressing reservation about validity of pre-primary deadline as applied to “genuine independents,” but upholding validity as applied to “sore-winner” of primary election).

We therefore discount as insignificant the state’s asserted justifications for imposing the pre-primary filing deadline upon independent candidates.

3. From our assessment of the extent of the injury to the voters’ rights here at stake — “essentially total” — and of the character and magnitude of the state’s asserted justifying interests — “insignificant”—it is obvious that at the third stage of the Anderson inquiry we would find the latter substantially outweighed by the former and the filing requirement therefore unconstitutional. Before concluding that, however, we think it proper to look briefly at the most obvious interest which a state has in imposing any pre-election filing deadline on ballot candidates. We do so because we believe that in the process the general constitutional limits on this particular form of ballot access restriction may be seen.

The most obvious state interest justifying any pre-election filing deadline is the need to provide a decent interval for administrative processing and for voter education. While no constitutional maximum or minimum has been developed, most states seem to have fixed on 75 to 90 days as a reasonable period to accommodate these two undoubted state interests, both as relates to primary and general³ elections. Looking only to those interests, a state surely could require independent candidates to declare and perfect their candidacies 60 to 90 days before a general election. Beyond that period, some other interest would seem to be needed to justify an earlier declaration of independent candidacy. Here, as indicated, we have been pointed to none which we (or the Supreme Court in Anderson) believe is sufficiently significant to justify imposing a filing deadline for independent candidates seven months ahead of the general election. Obviously, primary candidates must also be required to declare their candidacies a comparable time before the primary election in order to serve the same administrative and voter education interests that apply there. But those interests are wholly irrelevant to independent candidacies.⁴

We therefore conclude that no interests advanced by the state or noticed by us makes necessary the requirement that independent candidates declare their candidacies as early as March 30. Accordingly, we affirm the judgment of the district court declaring S.C.Code § 7-11-15(3) unconstitutional and ordering that Cromer’s name be placed on the 1990 general election ballot as an independent candidate for the House of Representatives from District 80.

AFFIRMED.

1 . The narrow question of the constitutionally permissible timing of a filing deadline for independent candidates has only been considered by the Supreme Court in Anderson. Because that is the narrow basis of challenge here, Anderson is the most direct authority on the issue. Both Munro v. Socialist Workers Party, 479 U.S. 189, 107 S.Ct. 533, 93 L.Ed.2d 499 (1986), and Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971), which the dissent cites in support of its position, at 829, involved challenges to other forms of ballot access restriction: Munro, to Washington’s employment of a single open primary, held in September; Jenness, to Georgia's requirement that independent candidates have 5% voter-signature support.

2 . Though the dissent, on its own, ranges more widely and deeply in political theory in hypothesizing possible state interests, the only ones "precisely put forward by the state” itself, Anderson, 460 U.S. at 789, 103 S.Ct. at 1570 — and those only in the form of litigation positions advanced by counsel — are those identlfied in text. If these interests, particularly the profound philosophical ones suggested by the dissent, are indeed those underlying this legislation, it may be thought remarkable that they did not prompt legislative action until as late in the state’s long history as 1988.

3 . As reflected in the fact that the latest current primary dates — those in August and September — provide a 75 to 90 day interval between the date of primary election results and the general election for voter education and election preparations.

4 . The dissent’s ominous suggestion that our rationale makes thirty-two states’ election laws constitutionally suspect because they require pre-primary filing by independent candidates, at 828, is unfounded.

The critical constitutional flaw in a March 30 deadline lies not in the fact that it precedes party primaries, but in the sheer length of time by which it precedes the general election. This is the principal point in Anderson. A more careful appraisal of the thirty-two states in question would therefore note that twenty hold their primaries as late as August, so that the opportunity for major issues to emerge in the post-primary interval (a critical factor in the Anderson analysis) is minimal. It would also note that fourteen of the thirty-two, including half of those with primaries earlier than August, allow independent candidates to file after primary candidates have filed, thereby further relieving the burden imposed by South Carolina’s simultaneous filing rule.

A truer assessment, for what it may be worth, of how South Carolina’s pre-primary deadline for independents stacks up with other states on the truly critical factors would be as follows: only six states other than South Carolina combine the two most critical burdens on independent candidacies: sheer length of time between filing date and general election (as much as seven months), and simultaneous filing deadlines for independents and primary candidates.

If these states’ filing deadlines are made constitutionally suspect by these features, it is by Anderson’s rationale, not ours.