Fishman v. Schaffer

429 U.S. 1325, 97 S. Ct. 14, 50 L. Ed. 2d 56, 1976 U.S. LEXIS 4130
CourtSupreme Court of the United States
DecidedOctober 1, 1976
DocketNo. A-257
StatusPublished
Cited by31 cases

This text of 429 U.S. 1325 (Fishman v. Schaffer) is published on Counsel Stack Legal Research, covering Supreme Court of the United States primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fishman v. Schaffer, 429 U.S. 1325, 97 S. Ct. 14, 50 L. Ed. 2d 56, 1976 U.S. LEXIS 4130 (1976).

Opinion

Mr. Justice Marshall, Circuit Justice.

This is an application to me as Circuit Justice for an injunction ordering officials of the State of Connecticut to place on the ballot for the November 2 election the names of the Communist Party candidates for President and Vice President of the United States, Gus Hall and Jarvis Tyner, ■ respectively. Applicants1 sought relief without success from a three-judge District Court for the District of Connecticut and, on appeal, from the Court of Appeals for the Second Circuit.2 While there is no question of my power to grant [1326]*1326such relief, this Court’s Rule 51; McCarthy v. Briscoe, ante, p. 1317 (Powell, J., in chambers); Williams v. Rhodes, 89 S. Ct. 1, 21 L. Ed. 2d 69 (1968) (Stewart, J., in chambers), it is equally clear that “such power should be used sparingly and only in the most critical and exigent circumstances.” Williams v. Rhodes, 89 S. Ct., at 2, 21 L. Ed. 2d, at 70. Since this case does not meet that standard, I must deny the requested relief.

Applicants filed their complaint on July 2, 1976-, attacking as unconstitutionally burdensome certain provisions of the Connecticut election law which apply to candidates seeking to get on the ballot by means of nominating petitions. They sought declaratory and injunctive relief against enforcement of only a small segment of this procedure — the prescribed method for filing the completed petitions. Conn. Gen. Stat. §9-453a etseq. (1975).

In order to demonstrate a “significant modicum of support,” Jenness v. Fortson, 403 U. S. 431, 442 (1971), Connecticut requires potential candidates to submit petitions signed by electors equal to one percent of the number who voted for the same office in the previous election. Conn. Gen. Stat: § 9-453d (1975). The petitions are available immediately after the last statewide election and do not have to be filed until nine weeks before the relevant election. § 9-453L Thus, the numerical and time requirements of the statute are, as the District Court observed, “markedly more favorable” to the potential candidate than are constitutionally required. Civ. No. H-76-263 (Conn., July 2, 1976); see Storer v. Brown, 415 U. S. 724 (1974); American Party of Texas v. White, 415 U. S. 767 (1974); Jenness v. Fortson, supra; Note, Developments in the Law—Elections, 88 Harv. L. Rev. 1111, 1123-1130 (1975).

As a means of assuring the authenticity of the signatures collected, the law requires that the circulator sign a statement under penalty of perjury that (1) each signer of a petition [1327]*1327signed the petition in his or her presence, and (2) he or she either knew the signer, or the signer satisfactorily identified himself or herself to the circulator. This procedure must be performed personally before the town clerk in each town, where any petition signer resides. Applicants do not object to the need for the circulator to make the required statement. They claim, however, that the requirement that it be done personally in front of numerous town clerks necessitates so much travel that it is unconstitutionally burdensome.3 While acknowledging that the State has a valid and important interest in assuring the authenticity of the signatures and the eligibility of the signers, applicants argue that this interest can be served in ways less burdensome to the circulators.

The District Court, while sympathetic to this claim, did not rule on the merits, since it found applicants’ suit barred by laches. It noted that applicants had tried and failed to qualify for a position on the ballot in a previous election. They were familiar with the statute and could have brought suit earlier. The delay meant that the legislature could not consider alternative filing requirements; instead, relief, if warranted, would have to be the drastic remedy of putting the candidates on the ballot, leaving the State with no protection of its interest in authenticity. Accordingly, the District [1328]*1328Court dismissed the action. The Court of Appeals, in an expedited appeal, affirmed without opinion.

Turning to the merits of the application, as I noted previously, the relief sought is extraordinary. So far as I am aware, a single Justice of this Court has ordered a State to put a candidate’s name on the ballot only twice. McCarthy v. Briscoe, ante, p. 1317; Williams v. Rhodes, supra. This case lacks all the significant features warranting relief in those cases.

McCarthy presented “no novel issue of constitutional law.” Ante, at 1320. In Mr. Justice Powell’s view, the Texas Legislature had adopted an “ ‘incomprehensible policy,’ ” amending its Election Code so as to preclude independent candidates for the office of President from qualifying for the general election ballot. Ante, at 1321. This deliberate refusal to provide access to independents was characterized by both the District Court and Mr. Justice Powell as demonstrating an “ ‘intransigent and discriminatory position.’ ” Ibid. Thus, there was no question that Texas had clearly violated the constitutional requirements for ballot access.

In contrast, the constitutionality of the Connecticut statute is at best a close question. I have no doubt about the correct standard of review:

“[W]hether the qualifications for ballot position are viewed as substantial burdens on the right to associate or as discrimination . . . their validity depends upon whether they are necessary to further compelling state interests. . . . [The limitations must be] reasonably taken in pursuit of vital state objectives that cannot be served equally well in significantly less burdensome ways.” American Party of Texas v. White, supra, at 780-781.

Nevertheless, there is little precedent dealing specifically with filing procedures. Indeed, the one case touching on the subject, American Party of Texas v. White, suggests that a [1329]*1329requirement more burdensome than Connecticut’s — that all signatures be notarized at the time they are collected — is not unconstitutional, at least absent more proof of impracticability or unusual burdensomeness than was before the Court. 415 U. S., at 787. Moreover, unlike the Texas law in McCarthy which provided no means of access whatever for an independent candidate, and the Ohio law which made it “virtually impossible” for a new political party to get on the ballot, Williams v. Rhodes, 393 U. S. 23, 25 (1968), Connecticut has one of the more liberal ballot-access statutes. Far from the intransigence found in McCarthy, here the Connecticut Legislature apparently sought to deal rationally with abuses it had encountered in the petitioning process. See Connecticut General Assembly, 7 House Proceedings 2313-2314 (1957).

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Bluebook (online)
429 U.S. 1325, 97 S. Ct. 14, 50 L. Ed. 2d 56, 1976 U.S. LEXIS 4130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fishman-v-schaffer-scotus-1976.