Bullock v. Carter

LOCATION: Georgia State Capitol

DOCKET NO.: 70-128
DECIDED BY: Burger Court (1972-1975)

CITATION: 405 US 134 (1972)
ARGUED: Nov 17, 1971
DECIDED: Feb 24, 1972

A. L. Crouch -
John F. Morehead - for appellants
Pat Bailey - for appellants

Facts of the case


Media for Bullock v. Carter

Audio Transcription for Oral Argument - November 17, 1971 in Bullock v. Carter

Warren E. Burger:

We will hear arguments next in Number 128, Diaz against Carter.

Mr. Morehead, you may proceed.

John F. Morehead:

Mr. Chief Justice and may it please the Court.

My name is John Morehead, and I am here on behalf of the Democratic Party of the State of Texas.

This case involves a constitutionality of political party filing fees as an absolute prerequisite to getting on the primary ballot.

This is an appeal from a duly constituted three-judged Court.

The Court below held that filing fees violate the First Amendment, the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.

When used either as a revenue collecting device or when made an absolute requirement in order to get on the ballot.

There were intervenors in this case who desired to vote for the candidates who did not have the filing fee.

Judge Taylor writing for the three-judge Court decided that since the intervenors wanted to vote for these particular candidates that this was really a voter’s rights case, and that therefore, in order for the State to sustain its laws, we had to meet the burden of showing a compelling State interest.

Our position is that the primary question before this Court, is whether or not the traditional rational relation test of the Fourteenth Amendment applies to this factual situation or whether or not the State must show a compelling State interest in order to sustain its laws.

To begin with, let me say that I consider the issues involved in a nominating primary or political party, to be different from those issues which are involved in a general election.

The reasoning of Mr. Justice Stewart in Turner against Fouche, I think that is the correct pronunciation, seems to me to indicate that a filing fee is an absolute prerequisite to stand for office in a general election would amount to invidious discrimination.

The first question to be decided here today is whether or not the primary should be treated exactly like a general election.

There is language in the 1944 case, Smith against Allwright with which Mr. Justice Marshall is very familiar, which indicates that the answer to my question is yes, and Smith, Mr. Justice Reed said, when primaries became a part of the machinery for choosing officials, State and National as they have here, the same test to determine the character of discrimination as a abridgment should be applied to the primary as are applied to the general election.

The Court in Smith was talking about a State statute which fenced off the rights of otherwise qualified black voters to participate in the democratic primary.

Since the decision of this Court in Smith, many cases have came before this Court which involved both voter rights and candidate rights.

The issues and problems have been definitionally refined to the extent that I think that if Smith were to come before this Court today, I believe that this Court would probably, would obviously reach the same result, but would probably use a little bit different wording than it was used in Smith.

I feel like that it would be much more similar to, for example the case of Kramer versus the Union Free School District.

In order to get an accurate perspective of the issues in this case, a brief sketch of how Texas election systems work will be helpful to the Court.

Primaries are held in May, and under the laws as it exists today, the payment of the fee is an absolute requirement to get on the ballot, no write-ins at all are permitted on the primary ballot.

In November, the election is free, no fees are charged at all in the State of Texas.

Warren E. Burger:

Who is eligible to vote on the primary election?

John F. Morehead:


You can only vote, and either there is a law which says you can only vote in a Democratic primary or in Republican primary, but all qualified voters are eligible to vote in a primary election.

Warren E. Burger:

In one way or the other?

John F. Morehead:

That is right.

Warren E. Burger:

They do not have to show anything about their party affiliation.

John F. Morehead:

No sir, they do not.

At the top of the ballot is printed the words which say that I pledge to support the nominees, but of course no way that could ever be imposed.