Communist Party of Indiana v. Whitcomb – Oral Argument – October 16, 1973

Media for Communist Party of Indiana v. Whitcomb

Audio Transcription for Opinion Announcement – January 09, 1974 in Communist Party of Indiana v. Whitcomb

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Warren E. Burger:

Immediately after lunch we will take up number 72 1040, Communist Party of Indiana against Whitcomb.

Mr. Rosen you may proceed whenever you are ready.

Sanford Jay Rosen:

Mr. Chief Justice and may it please the court.

This appeal brings before the court a challenge to a provision of the Indiana Election Law that contained conditions political party access to the ballot on the making on a disclaimer that the party does not advocate overthrow of government by force or violence.

Plaintiff’s tendered signatures on petitions for inclusion on the ballot, on August 31st, 1972.

The defendants, the Election Board of Indiana rejected the petitions the same day, relying on the provision of Indiana law and an opinion rendered on August 28 by the Indiana Attorney General.

The statute specifically provides that the affidavit must state the party does not advocate the overthrow of local state or national government by force or violence and that it is not affiliated with and does not cooperate with nor has any relation with any foreign government or political party or group of individuals of any foreign government.

The opinion of the attorney general took the statute a step or so further stating as to the particular appellants, the party appellants, the Communist Party of Indiana that “this Communist Party would not be eligible to appear on the Indiana ballot even if its officers should sign an affidavit because that would be an obvious perjury in view of the communist party stated purposes and those Indiana officials who would be responsible for placing the communist party on the ballot could be subject to federal criminal prosecution, as well under the Smith Act and the Communist Control Act, somewhat (Inaudible).”

The plaintiffs in this action, the Communist Party of Indiana, the candidates for the presidency and vice presidency under that banner, candidates for electors of the president and the vice president under that banner, a voter and the class of voter she would represent sued for injunctive and declaratory relief against the enforcement of this Indiana Statute.

The amended complaint which is the basic document before the court was filed on September 8th, 1972.

A hearing was held on September 28th, 1972 and a decision was conducted on the same day.

Three-judge district court in Indiana ruled that the affiliation clause of the statute, the statute prohibiting affiliation with a foreign government or a segment thereof, was on constitution on its face.

It on the other hand specifically validated the advocacy clause.

The communist party as a consequence of this action and a consequence of the fact that it had very limited time in which to get on the ballot, or to take steps to get on the ballot for the 1972 election, submitted a qualified affidavit, pursuing to the order of the court.

In that affidavit the party stated by its officers that it did not engage in the unlawful advocacy or the prescribed advocacy.

It went on to state concerned obviously with the opinion of the attorney general about the perjury sanctions that the term advocate used here in has the meaning given by the supreme court of the United States in Yates, “the advocacy and teaching of concrete action for the forcible overthrow of government and not of principles divorced from actions.”

So affidavit was tendered and rejected by the election board on September 29th by a vote of 2:1.

Thereafter the plaintiffs went back to the district court, requested an order enforcing the previous mandate of the court, that order was denied on October 4th.

A motion to amend subsequently made was denied on October 31st and various attempts by the appellants here and appellees on the other side were also rejected in an emergency posture by this court.

Both sides then took appeals from the two different decisions of the three judge court.

On March 19, 1973, this court summarily affirmed the decision of the three judge district court to the extent that that court had invalidated the affiliation clause of the Indiana Statute.

The same time, the instant case, the appeal by the communist party, its candidates and voters, the court entered an order stating that the question of jurisdiction has been postponed to the hearing of the case on the merits.

Now what appellants take to be the question of jurisdiction in this case, at this point, after all the emergency appeals had been rendered and after the various actions have been taken in the district court is the question of the timeliness of the appeal and I would like to rest, so far as that question is concerned on the brief.

We brief that extensively, possibly too extensively but since the question was reserved and this was the question that appeared to us to be the jurisdictional question, we had briefed that from pages 13 to 15 in the appellant’s brief and unless the court desire specific argument on that issue, I would rest on the brief and turn to the merits.

Plaintiff’s request to this court to reverse and remand through the district court with instructions to void the advocacy provision of the Indiana statute.

We have a number of arguments which I think we have fairly extensively briefed but it might be helpful to go over them in order.

Our first point concerns the nature of voting a standing for public office and of political parties.

These are clearly fundamental interests, enumerable decisions of this court have stated that the right to vote is the fountainhead of democratic rights in our society.

In the Bullock and Carter decision the court indicated that the rights of the candidacy are so bound up with the right to vote that they are basically inseparable, and of course in Williams and Rhodes, and other decisions the court has indicated its extreme sensitivity to the need of the candidates and voters to be affiliated with the political parties that are able to place on the ballot of a state or of a national election.

Candidates who are sponsored and clearly stated to be sponsored by given political parties.

Sanford Jay Rosen:

To this extent then, this case involves what the court has characterized as fundamental interests and it renders this case, this appeal different from the cases in which the court has evaluated oaths in other contexts.

This is different from an employment oath context, it is different from a bar admission context.

In neither of those other context, you have the interest that is being withheld as a result of the oath, achieve the kind of fundamental interest that this court has this fine voting and candidacy and political association.

The interest itself, the vote, the candidacy.

In those cases you have had a situation in which an interest admittedly a valuable interest, has been conditioned upon the giving of an oath or an affidavit, and evaluating the oath or affidavit, the court has been looking however, so far as the constitutional dimension is concerned only at the oath or the affidavit itself.

Here you have to look at both, both have First Amendment dimensions, the vote, the candidacy and all, and also the affidavit, involves a First Amendment dimension.

Now we submit with this context set of the primacy of voting that the state has an enormous burden of the persuasion of the necessity, for any limitation upon voting or candidacy particularly a limitation that may encroach itself upon First Amendment rights, by enquiring into political motivation or ideology of a candidate or a party.

The state has no such legitimate, nor even nor certainly compelling interest in so conditioning voting and candidacy.

State on one or another has spoken a fraud and spurious candidacies, well it is a little late in the day for anybody to be suggesting that the efforts of the communist party of Indiana or of the United States to place candidates before the electorate are fraudulent or spurious.

It is a political party, it has been a political party in this country for enumerable years, and it has fielded candidates for Ohio office throughout most of the years that it has been a party in this country.

Subversion, the state points to or the avoidance of subversion as being a legitimate and compelling interest.

Indeed that is a legitimate interest.

Obviously the state has an interest in avoiding its subversion.

So does the national government.

Well it is a compelling interest in this context is much more open to doubt, we think actually it is not open to doubt, it is not a compelling interest.

The state is asking an oath three steps away from office taking itself.

To get on the ballot, you have to execute the oath, to get to the point where you can subvert the government from within, if that is the state’s interest in, and I can’t conceive of another interest that the state might have and categorize it as legitimate.

To get to the point of subverting the government, you got to win the election, and then the government by the constitution, Article 6 and Article 2, can certainly give the support oath and screen out people who can not take the support oath before office taking occurs.

So this oath is placed in to steps before office taking, it is quite an enormous offense, the state is placing around its interest in avoiding subversion.

Potter Stewart:

What do you understand the meaning of the phrase compelling interest to be?

Sanford Jay Rosen:

As I understand it to mean the state has to come forward with an interest that– I don’t want to use the term outbalances, well I think the court’s analysis in the Robel case of how legislation is to evaluated in terms of compelling interest is perhaps is the most apt, as I recall it was in a footnote, in the Robel case that the court discussed the fact that it wasn’t talking about balancing as such, it recognized on the one hand that freedom of speech is an important interest to our society and our government.

On the other hand avoidance of subversion in sabotage is an important interest as well.

When these two come at one another, seem to be in conflict then the court must fall back to a somewhat different analysis and not try to balance one against the other necessarily but to try to evaluate whether the state has or the government has some alternative ways of securing the legitimate interest which is compelling and in that case as you recall Justice Stewart, the court ruled that the federal government didn’t demonstrated lacked alternative ways and in this case too.

Potter Stewart:

Now that’s the availability of alternative means as it is something else, but I did not mean that, my question was an easy one, because I was really asking for information by the way and for help, what do you think the phrase compelling interest means constitutionally?

Sanford Jay Rosen:

Alright, constitutionally I think it first means that a burden of proof is shifted, a burden of constitutional proof, whereas initially one who comes in to challenge a state law, has the burden of demonstrating that the state law is bad, wholly on his or her shoulders, when you establish a fundamental interest or if you are dealing with the equal protect clause of course of suspect classification, then the burden of proof shifts. First the burden of going forward, if you want to talk in evidentiary terms shifts to the government to come up with some legitimate reasons, some reasons that go beyond mere rationality which would be the ordinary standard to be applied in the equal protection or the due process area.

Now having come up with these legitimate reasons when the court states that these reasons not only are to be legitimate but also must be compelling, it seems to me the court is either talking about a balancing test which some members of the court don’t view with favor or it is talking about police restrictive alternative test and in either event it still and also pertains I think to a burden of proof.

It has now become the burden of proof question rather the burden of going forward question.

Potter Stewart:

Do you think the phrase or the concept or the notion of whatever that phrase may mean or reflect compelling interests has any relevance at all in any area outside of the area of the equal protection clause?

Sanford Jay Rosen:

Yes, I think so I think Robel indicates that it has some relevance outside of that area, I know that it first originated in the equal protection clause but as it seems to me in the later decisions of the court to be something of a spillover into a First Amendment area because of the parallelity in the two tests–

Potter Stewart:

Of course the state, anyways this is semantics but it seems to me a little more than that and a little more fundamental than that.

Potter Stewart:

If a state law violates the First and Fourteenth Amendment clearly, then a state can just justify that violation by showing its compelling interest, can it?

Sanford Jay Rosen:

Certainly.

Potter Stewart:

Because the law is simply unconstitutional that is regardless of how compelling the state interest might be.

Sanford Jay Rosen:

I would certainly argue that Your Honor but the state I am sure would come back and try to fantasize circumstances in which a law could be justifies even–

Potter Stewart:

Could be unconstitutional and still constitutional?

Sanford Jay Rosen:

Precisely.

Potter Stewart:

But I don’t understand.

Sanford Jay Rosen:

And I would not want to try to meet the hypotheticals at this point that the state might attempt to articulate, but I agree with you Mr. Justice Stewart that if it is an invasion of the First Amendment–

Potter Stewart:

That they entered.

Sanford Jay Rosen:

That should be the end of it. However once you move to through the opinions of this court, we are caught up with sometimes analysis that talks about compelling interest and sometimes analysis that talks about least restrictive alternative.

I think in large part on the basis of a legitimate desire and on the part of the court to avoid facing the pure First Amendment question unless it has to, so the court presumably would decide the case on overbreath and vagueness grounds.

Potter Stewart:

Well those are First Amendment concepts.

But you do stick to your answer that this compelling interest phrase and whatever concepts or ideas it may represent has that ability beyond the area of the equal protection clause?

Sanford Jay Rosen:

No, I would say that that is a secondary argument that we would agree with your initial agreement that is if this is an invasion of the First Amendment and over breath–

Potter Stewart:

I was not arguing I am asking question?

Sanford Jay Rosen:

Excuse me a question that would be the end of it, if the court is compelled then by its own decisions or by its own analysis of the issues to look beyond that into something like a compelling state interest or compelling governmental analysis interest notion or a least restrictive alternative notion then we would suggest the state can not meet the burden of proof of constitutional proof that would lodged on its shoulders.

Mr. Rosen this colloquy prompts me to ask, do you know of any case where the court has spoken in terms of compelling interests or least restrictive alternative where it is found such to exist?

And if not is it just a means of striking down the statute?

Sanford Jay Rosen:

It might be shorthand for another kind of decision.

I think that from time to time in the opinions of the court there is discussion of the compellingness or the legitimacy of the government’s interest in taking one course of the action or another.

Even in some of the decisions that involve overbreath, I can’t put my fingers on them, I recently read the Broderick decision and I have some vague recollection, of course that is from last term that they may have been intimation of that if not an explication of it.

Is part of your position then, the right to run the offices, is a federally protected right?

Sanford Jay Rosen:

Yes Your Honor.

First Amendment guarantees–

Sanford Jay Rosen:

First Amendment also it is protected by our federalism to use Justice Black’s phrase, it is protected by Article one and Article two.

So far as the–

How about the right to vote?

Sanford Jay Rosen:

And the right to vote, yes.

In state elections?

Sanford Jay Rosen:

This case for the moment only involves federal elections, the presidents and vice presidents, the electors —

Did you say that the right to vote in federal elections is a federally guaranteed right, that is what you said?

Sanford Jay Rosen:

Yes we were that it is a federally guaranteed right.

Well by statute or?

Sanford Jay Rosen:

Well it is guaranteed of course by merely the statutes but we think it is also guaranteed by Articles one, two and the various amendments to the constitution bearing upon voting.

We think that—

Potter Stewart:

We think certainly that a right of women, not to be discriminated voting as this case explicitly guaranteed the right of Negros not to be discriminated in voting it is specifically guaranteed by the Fifteenth Amendment, we are talking about —

Sanford Jay Rosen:

The right of —

I thought the question to you was some sort of right at large to vote that you say is a —

Sanford Jay Rosen:

Yes we think there is the First Amendment right to vote which is intimated well.

It is not intimated in Bond v. Floyd, but something like it is intimated in Bond v. Floyd that correlative right of the candidate to take his office.

We think in Powell versus McCormack, there was a good deal of discussion about the interest of the polity and being represented by people they chose.

I cannot say to the Court that there was an explicit ruling of the court that states in so many words that there is a First Amendment or otherwise guaranteed Federal right to vote in Federal elections I think that is the thrust of many of decisions of the court.

Potter Stewart:

The only explicit absolutely explicit Bond holding on the subject with which I am familiar is the one in Minor v. Happersett that says there is no constitutional right to vote.

Sanford Jay Rosen:

Yes but there has been a lot of constitution —

Potter Stewart:

There has been a lot cases since the lot of water has gone over the dam since but I doubt that you can find that case that has ever been overruled.

Sanford Jay Rosen:

I doubt that it has been overruled and as I say I do not think there has been an explicit statement to that is a federally protected right to vote.

I think there is an intimation in many decision.

Thurgood Marshall:

You said earlier you first you established your claim and then the state has the burden in moving forward etcetera, etcetera.

I am waiting for you to say just what is your claim?

Sanford Jay Rosen:

Oh one of our claims of course is taking up from Justice Stewart’s question is that, there is a First Amendment dimension to the right to vote and candidacy.

The court certainly —

Thurgood Marshall:

Well how does the advocacy provision interfere with that, is that probably the one here you are saying?

Sanford Jay Rosen:

Alright in various ways first how does the advocacy provision interfere?

Well first in the very pragmatic way it interferes because the Communist Party was precluded from the ballot.

It attempted to articulate an advocacy affidavit which was consistent with decisions of this court namely the Yates case which was then rejected by the defendants and appellee.

Thurgood Marshall:

Why does the party cannot take this oath?

Sanford Jay Rosen:

I beg your pardon.

Thurgood Marshall:

Why is it that the party cannot assert that it does not advocate the overthrow of the government by forcing them?

Sanford Jay Rosen:

Is it why is it that it cannot, it does not believe that it should.

It believes that it is protected in its right not to have to make that kind of mistake in order to gain access to the ballot because for several reasons.

Sanford Jay Rosen:

The oath that it does not advocate the overthrow of government by forcing violence without any further qualification goes well beyond all of the oaths that this court has hereto for validated.

In any other context, leave aside now the fact that we think the voting in candidacy is special context.

This is not the function equivalent to support oath and in recent years of these, the only kind of oath that this court has ballotated has been validated only on the basis that it is either the functional equivalent of the support oath or it is invoked strictly speaking to determine whether the person making the oath is doing it conscientiously in terms of the purposes behind the support oath.

That’s Wadman case and the Cole versus Richardson’s case.

Without any further the qualification, the absentee clause just encroaches well beyond a person’s duty as a citizen to stand up and say that it was supported to offend the constitution.

It says it requires them to say I do not advocate overthrow by force or violence.

That language is very very dangerous language.

It is a dangerous language as this court has recognized in the line of cases running from Dennis through Yates through Noto and Scales and Robel Brandenburg because there is a lot of advocacy of forcing violence that is constitutionally protected.

So long as that advocacy is not directed to inciting action.

Now we think immediate action, but they did not even get close to that in this case.

So as long as the advocacy is not directed to the incitement of action.

It is constitutionally protected in and of itself.

Now we have a number of other arguments which go back to the basic nature of our Federal system.

We submit —

Thurgood Marshall:

Does the Communist Party advocate or they not?

Sanford Jay Rosen:

Does it advocate?

Thurgood Marshall:

Yeah.

Sanford Jay Rosen:

I am sorry I did not ask the party or any of its agents.

Thurgood Marshall:

That is not the reason you are not taking the oath, that is not the reason right?

Sanford Jay Rosen:

That it advocates forcing violence.

I have no idea, I do not have that, the issue never came up in the proceedings and I do not think it was my obligation to ask.

In the particular context but —

But your problem is that for the very reason you are arguing that this oath is invalid, that question is impossible to answer.

Sanford Jay Rosen:

It is impossible to answer Your Honor, I would not want to have to answer that personally in some circumstances.

So the point being that it is too abstract and open ended question.

Alright, but we do have certain other positions and that is that so far as candidacy in Federal Elections is concerned, so far as that kind of candidacy is concerned the state is limited to know more than the constitutional oath of office and as we have already argued, this goes well beyond the constitutional support oath.

William H. Rehnquist:

Will that position be limited to Federal elections if you are talking about the United States?

Sanford Jay Rosen:

Will it be limited?

William H. Rehnquist:

Well your statement was that is insofar as the state can move in the area of Federal elections, if you are arguing in constitutional grounds, I would think it would be across the board.

Sanford Jay Rosen:

We do argue across the board Your Honor but in this case —

William H. Rehnquist:

Why do you say in Federal elections is if that’s limiting —

Sanford Jay Rosen:

We say in Federal elections only because so last the facts are involved a federal election in this particular case otherwise, I assure you Your Honor, I would be here arguing that it cuts across the board and we have intimated such an argument in our brief.

We would invite the court to go that far.

Are you familiar with United States and class?

Sanford Jay Rosen:

I am familiar with it yes.

Obviously included within the right to choose secured by the constitution is a right of qualified voters within the state who cast their ballots and have them counter that congressional elections.

This court has consistently held that this is a right secured by the constitution.

Sanford Jay Rosen:

We would rest on that statement Your Honor thank you.

This oath was three steps beyond the critical oath that one takes when he is elected —

Sanford Jay Rosen:

Beyond the office taking.

Right, would you consider that this oath was appropriate and constitutional for one about to take the oath of office?

Sanford Jay Rosen:

No Your Honor.

So what difference do the three steps make?

Sanford Jay Rosen:

It just makes it much more attenuated in terms of any interest the government might assert.

If this were the oath that the State of Indiana required of its office takers we would be here challenging it on grounds of overbreadth.

It is not the functional equivalent that we support of, thank you Your Honor.

Warren E. Burger:

Mr. Attorney General.

Theodore L. Sendak:

Mr. Chief Justice, may it please the court.

The company may Your Honor, or the chief counsel of my office Mr. Shaldon Bresko(ph), Assistant Attorney General Darrel K. Diamond and one of the name defendants Mr. Karl Steifer(ph)of Indianapolis was the member of the bar at this court as well.

The matter of Jurisdictional question which the court has is reserved, we too passed to our brief on pages five and six and would differ on that and prefer to argue on the merits of the case.

State of Indiana as represented by its Indiana General Assembly and as upheld by the Indiana Supreme Court decided long ago that in conformance with the cases of this court that the state has a right of self reservation and that in balancing the rights of all of the amendments of the constitutions that this court has never held at the First Amendment right are absolute or that any rights are absolute, that there has to be a balancing of the rights and the history of Indiana would show that we have had difficulties and as the reading of our oath would imply, our oath as it has been trimmed down by the Federal court below and which we defend is to the effect that the political parties or political groups seeking the official status of political parties must have their officers sign this oath and submit it along with their petitions to the state elections board.

Now our law applies to all political parties unlike the Ohio law and Gilligan which this court ruled upon last year.

Our law applies to republicans, democrats and every other party before they get on initially and then each year but there is an election they are required by the same law to submit a statement in that platform officially staying the substance of this same oath and all parties which get on the ballot, including the Socialist Labor Party and Socialist Workers Party and the others, the Peace and the Freedom Party in 1972 so complied.

But all that we ask now is that these party official state that they do not advocate the overthrow of local, State or National Government by force or violence and besides the history of the thing which would show you some background in Indiana’s consideration here, we have the feeling, as expressed so well, by Mr. Chief Justice Burger in Cole v. Richardson case that seems, there is no constitutionally protected right to overthrow our government by force, violence or illegal or unconstitutional means, no constitutional right is infringed by an oath to abide by the constitutional system in the future.

Our feeling is that once you pass the threshold of moving from the college or the coffee klatch or the power discussion into the status of an official political party where you are recognized by the State and start off with an equal opportunity, no matter what the odds are, taken over the reigns of government that the State has the right to ask you to abide by the rules.

Once you cross that threshold.You move from potential to kinetic in terms of the battle for political power and the Indiana law is clear, it is continuing, it applies to all political parties, reasonable men can understand it.

There are no criminal penalties attached.

Appellants’ counsel refers to an official opinion of the Attorney General to the election board.

Official opinions of the Attorney General in Indiana are not the official construction of the law.

The construction of the law in Indiana is by the Indiana Supreme Court.

Theodore L. Sendak:

All official opinions in Indiana are merely advisory.

The Attorney General of Indiana has to general criminal powers.

All he is doing in that opinion was stating a fact, upon reading the communist platform as circulated in Indiana and reading the fact that they failed to take the oath, he was stating the fact, that of they did take fields as they state in here, that they might not be telling the truth, they might be semantics to disguise their actual advocacy of action.

If I may refer to page 32 A of the Appendix prepared by appellants in which they state, in their petition of October 3, submitted to the court below, “In order to make it perfectly clear to the State Election Board, the court and the citizens of Indiana, that said party, the Communist Party, was not conjuring itself.”

The last sentences said, affidavits was attached and that last sentence was that qualification with reference to a statement taken out of context in Yates and then the statement in that same paragraph, thus the plaintiff Communist Party can with the clear conscious signed, attached affidavit.

In other words, they reserved the right, they impliedly admit that they do advocate the violent overthrow of the government, but they reserve the right to specify the time and the place and the method.

William H. Rehnquist:

Mr. Sendak, what is it, the State’s position as you represented here, with respect to whether the Indiana Election Commissioners could refuse a place on the ballot to a party that signed the oath as upheld by the District Court just because the Election Commissioners felt that perhaps the oath was not truthful?

Theodore L. Sendak:

The State’s position is being changed by the District Court below and our failure to get jurisdiction for docketed here on the other issue, but a basic law in Indiana is that the State Election Board must strictly comply with that requirement.

That is if a rule presents a petition and with the requisite number of signed registered voters and presents the affidavit, the State Election Board must receive it.

The law also states, that the State Election Board shall then, make an investigation after the accuracy of the petitions which it had no opportunity to do here, because of the time element and as to abreast of the affidavit.

It provides no criminal penalties, however, and the only action it can take at that point, if it finds either the affidavit is wrong, as it did in another case and did in this case or that the petitions are insufficient, it just rejects the party’s position on the ballot.

In 1968, the same issue came up before the Indiana Supreme Court, Socialist Labor Party versus State Election Board.

They submitted the required number of affidavits or petitions, excuse me, but their affidavit was incorrect.

It did not strictly follow the law, so they were thrown off the ballot and the Indiana Supreme Court said that the State Election Board has a duty of strict compliance with the law.

William J. Brennan, Jr.:

As my brother Rehnquist was asking, suppose there was strict compliance and the party did not exclude an affidavit precisely the form that the law requires, but the Election Board thought that it was an untrue affidavit?

Theodore L. Sendak:

The Election Board being obligated to comply strictly would have to put them on a ballot.

Thurgood Marshall:

Is there anything in the record on this that a law was passed.

Theodore L. Sendak:

Yes, Your Honor.

Now this law was passed in 1945 at the height of World War II and referring again the Indiana’s experience —

Thurgood Marshall:

I thought I said — you said that it applied to all parties equally?

Theodore L. Sendak:

Yes sir.

Thurgood Marshall:

Well, you had Republican and Democrat parties long before then, didn’t you?

Theodore L. Sendak:

Yes sir, but they had to submit this affidavit in 1945 to be on the ballot —

Thurgood Marshall:

They didn’t before that?

Theodore L. Sendak:

No party did before.

Thurgood Marshall:

That is what I meant.

Theodore L. Sendak:

But it applies to all equally and it is a continuing requirement now.

Thurgood Marshall:

When did the Communist Party first start operating in Indiana?

Theodore L. Sendak:

In Indiana?

Thurgood Marshall:

Around the same time?

Theodore L. Sendak:

Sir?

Thurgood Marshall:

Around the same time?

Theodore L. Sendak:

I believe the Communist Party started in Indiana long before that, long around 1919 and 1920.

We had a case upon which we rely for the State’s construction, for example, the word ‘advocacy’ and that was the Bootash (ph) case in 1937, a criminal syndicalism case but in which the Supreme Court reversed on the facts, but the defined advocacy in Indiana to mean incitement to action.

So apparently they were involved in activities prior to 1945.

The 1945 law if I may say —

Thurgood Marshall:

Communist Party was operating before than —

Theodore L. Sendak:

Not as a Political Party, no sir.

They never been on the ballot.

Thurgood Marshall:

That was my question.

Theodore L. Sendak:

I am sorry, I misunderstood.

Thurgood Marshall:

Thank you.

Theodore L. Sendak:

If I may, I would like to proceed to the State’s interests, the Bullock case to which counsel for appellants refer, makes the statement of the State has in interest, if not a duty to protect the integrity of its political processes from frivolous or fraudulent candidacies.

This Court has upheld, a loyalty oath in Pennsylvania for political candidates in Lisker in 1971, where the loyalty oath was much more loosely worded, it’s something to the — read something to the affect that the potential candidate was not a subversive person, whatever that would be and then again in the Gerende case in 1951 where it upheld the oath in Maryland for political candidates, where they stated they were not engaged in one way or another in activities of this nature.

The Healy case in 1971 involving the STS, this Court made a statement, a holding, I believe that recognition may be denied to any group which reserves the right to violate any valid rule with which it disagrees and that is our contention here, that by they do it yourself oath or customize oath, appellants presented through the Federal Court below, which rejected it, by the way, that they are attempting to reserve the right to engage in this action and therefore, their oath is not valid, they are performing, and if at all, with a mental reservation.

As to the question that the oath must exactly pair-up the oath that the President of United States takes, discarded as many times how if that is not so.

In the Olsen case, in 1971, I believe it was, 1970, this Court has held specifically, those were almost the exact words that the oath administered do not have to pair to the oath of the President.

As to the use of the words, the converse elements, I like the wording and since it seems to be a bad oath semantics in sense of the word, in Cole versus Richardson, which I just quoted.

Byron R. White:

Well, let us assume that an oath requiring a candidate to oppose the over throw of the government by force and violence, were constitutional —

Theodore L. Sendak:

Well, in this Court it is.

Byron R. White:

As Cole wasn’t a candidate, but he was an employee.

Theodore L. Sendak:

Yes Sir.

Byron R. White:

Suppose for a candidate that was constitutional, would that subsume or cover this oath of yours, namely that I will not advocate.

Theodore L. Sendak:

I believe the Cole versus Richardson explanation goes even beyond ours.

Ours just says that we will not take those actions, we will not advocate action to overthrow the government by force or violence.

Byron R. White:

Well, I suppose then that the state would be equally satisfied with an oath to the effect that I will — that I will oppose overthrow?

Theodore L. Sendak:

Well I would assume so, but the state legislature has passed Act here and it simply said that I do not advocate the overthrow —

William J. Brennan, Jr.:

If I gather Mr. Attorney General —

Theodore L. Sendak:

Sir?

William J. Brennan, Jr.:

As I gather they were substituted for the prescribed form of oath in the form of a Cole versus Richardson you do (Inaudible).

William J. Brennan, Jr.:

I think you told us earlier —

Theodore L. Sendak:

The State Election Board would have no choice, it has to follow.

William J. Brennan, Jr.:

(Voice overlap) reject it.

Theodore L. Sendak:

Yes sir.

William J. Brennan, Jr.:

Yeah.

Theodore L. Sendak:

But I thought perhaps Mr. Justice like many of the state legislator of Indiana where we have such an oath it would be fine.

It would encompass the same thing.

The — in Cole versus Richardson the words to oppose the overthrow in my opinion are not different from not to advocate the overthrow, substantially the same and I am thinking does one have the right to advocate that which he has a constitutional duty to oppose.

In the very Fourteenth Amendment I would like to refer you to the Section 3 of the Fourteenth Amendment which is I rarely discussed where a discretionary oath really takes place, where it says using the negative to begin with, “No person shall be an elector or other official or hold any public office, I put the word public in there, any office who haven’t previously taken an oath to support the constitution of the United States shall have engaged in insurrection or rebellion against the same or given aid or comfort to the enemies thereof.

There must have been the same discussion at that time for the obvious reasons and this would go back to the background as to why Indiana perhaps adopted this oath when it did in view of the background.

The case of ex parte Milligan with which this Court is well squinted besides the ruling on habeas corpus, the factual background was that Mr. Milligan was one of those who engaged with southern sympathizers in overthrowing several local units of government and when General Morgan’s raiders and others came in they actually took over for a period of days local units of government.

We had the same thing in Indiana’s background in the sense during the 1920s and 30s with the rise of the Ku Klux Klan and we also had during the 1930s and up to World War II very radical areas as between the German American Bund and the Communist Party in Indiana and these things caused the legislature — legislature of Indiana during the height of the war to pass this law and to apply for all political parties.

That’s a legislative background on that law.

As to counsel for opponents reference to Brandenburg, Yates, Noto and those cases, they are criminal cases and heavy much more strict standard of proof in the civil matter such as this.

If we had to set up our standard we would say that in Indiana following the construction of the Indiana Supreme Court that the advocacy has to be linked to action and that you cannot reserve the right to take violent action if you are going across the threshold and become officially recognized as a political party.

The one other thing Mr. Chief Justice I would like to refer to is the very platform of the Communist Party itself which is copyright in May 1970, Library of Congress no. 79-127023 and circulated throughout the country, including Indiana and as I mentioned earlier a voter in the state of Indiana who is properly registered could vote in 1972 by an examination of these platforms for everything for which the Communist Party stood except one, he could not vote in Indiana for those candidates who advocate or refuse to say they don’t advocate the overthrow of the government by force or violence.

But the Communist Party goes on to say, if I may quote very briefly in point, that their campaign for their rights free from all social and legal restrictions, page 61, page 64, “We communists are not pacific.

We leave violence from the class standpoint.

Accordingly we regard non-violence as a tactic of struggle in some instances but we do not adhere to it as a principle or a philosophy” and then on page 93, “Speaking about whether or not there would have to be a bloody ordeal or whether they could assume power through the electoral process without it.

Yes of course we must be prepared to meet any eventuality while we seek a peaceful path as preferable to a violent one, this choice may prove to be blocked by manipulatory action, socialism must be sought therefore by whatever means the circumstances may impose” and then finally in the words that they italicize are the words I will emphasize, “The very development of present day struggles lays the basis for making clear now the need to change the system and for building now the movement for socialism in United States.

He who does not work for these goals now will never be prepared for revolutionary change.”

So they are advocating action now which may prompt it to take some unlawful action as noted in Yates page 322, quoting Dennis.

I mentioned the cases interpreting our law in Indiana.

Indiana Law is fair.

It does not violate anyone’s rights with respect to getting on the ballot if they will make a conscientious oath and effort and not reserve the right to overthrow the government by force or violence.

Thurgood Marshall:

What does advocate mean, advocate?

Theodore L. Sendak:

In its dictionary sense or our sense?

Thurgood Marshall:

No sir, what it means, what does it mean in this statute?

Theodore L. Sendak:

In this statute as construed by the Indiana Supreme Court, it means promoting the taking of illegal action either now or something in the future.

Thurgood Marshall:

So advocacy and promotion are identical?

Theodore L. Sendak:

In that strict sense.

Thurgood Marshall:

What do you mean by promotion?

Theodore L. Sendak:

Taking active steps to incite, the word incitement would be more appropriate perhaps.

Thurgood Marshall:

But it is not here?

Theodore L. Sendak:

Sir?

Thurgood Marshall:

The word incitement is not in that?

Theodore L. Sendak:

No, but this is the construction put on Your Honor by the Indiana Supreme Court.

Thurgood Marshall:

Well suppose somebody said I think the things are so horrible may be the only way anything can happen is to somebody else overthrow the government?

Theodore L. Sendak:

Anybody is free to say that in Indiana or anywhere else.

It’s when you become an official party of the electoral system that you have to take an oath that you are not going to —

Thurgood Marshall:

That person would be barred from taking the oath, you don’t mind?

Theodore L. Sendak:

I don’t that think so.

Thurgood Marshall:

If somebody just said there is a possibility?

Theodore L. Sendak:

Well anything is possibility sir in these days.

I don’t think —

Thurgood Marshall:

But isn’t advocacy — there is a great problem with the word advocacy?

Theodore L. Sendak:

You are right sir.

Thurgood Marshall:

I just don’t know what it means.

Theodore L. Sendak:

Well to me it means as the three young persons took the oath here that they would support the constitution.

I interpret the fact that these three young people before this law —

Thurgood Marshall:

That would be a lot, does it not, advocacy and support?

Theodore L. Sendak:

In that sense of the word, but advocacy in the sense the word as contemplated by this statute and has construed by the Indiana Supreme Court means promoting the incitement.

Thurgood Marshall:

Is a person who teaches an advocate, is he an advocate?

Theodore L. Sendak:

In a sense he is yes.

Thurgood Marshall:

So if a person who teaches military discipline?

It’s going to give me a whole lot of trouble, I don’t —

Theodore L. Sendak:

Depends on the context, what are in the context of combat arena of politics and struggle for the reigns of the government.

It has a one meaning in quite surrounding of the school, it has another meaning here and is less than opposed.

Potter Stewart:

Are there any other states that have an oath similar to this?

Theodore L. Sendak:

Yes sir, this Court considered one in Ohio in a Gilligan case last year and their case as much I don’t want to depreciate theirs, but ours is much more strict.

Potter Stewart:

Oath as this, Ohio doesn’t have it anymore, do they?

Theodore L. Sendak:

Well, they may have changed it legislatively but at the time this case came up in 1972 it had.

Potter Stewart:

Any others that you know off?

Theodore L. Sendak:

I think other states do, I have not researched all that — so I can’t honestly answer that.

Thank you very much.

Warren E. Burger:

Thank you, Attorney General.

Mr. Rosen going on about three minutes left.

Sanford Jay Rosen:

In answer to Mr. Justice Stewart’s question about other states that may have similar statutes, I think is as compendium note in Emerson, Haber & Dorsen at pages 315 on the choice to collect states, but that’s out of date.

I understand a new editions is coming out, There have been states that have similar oaths.

Potter Stewart:

They were at the time —

Sanford Jay Rosen:

Yes I believe so.

They — they either — candidates oath or party oaths, they tendered to merge them together that would be as many as 20 who have one kind of an oath or another.

Second point I would like to make in rebuttal is, of course, I think that quoting from the 1950 Communist Party platform is totally irrelevant to the issues in this case on innumerable grounds that’s part of the record in the case, if it were, it would be stale on basis of many decisions to this Court involving Communist Party registration or prosecution so that it is obviously a sport.

On over breadth, in addition to the cases already cited to the court, so far as the Indiana Supreme Court’s interpretation of this or similar statutes is concerned, there is one case that had not been cited so far that State versus Levitt, 203 NE 2nd 821 (1965) in which the Indiana Supreme Court impliedly upheld the constitutionality of a broad submission statute.

Further so far as the Attorney General’s power to interpret and enforce law absent a definitive determination, the court’s would agree, there is no literal power in Indiana law for him to bind officials.

However, he is certainly authorized by statute to issue advisory opinions.

The election board specifically relied upon his opinion in coming it’s determination and it would seem to us that the court’s analysis in Wiegmann and Broderick just last term in terms of the powers and authority like the Attorney General pointed to interpret a statute would be of some relevance to a determination in this case.

Potter Stewart:

Have there been any suggestion in this case anywhere along the line that the Federal Courts abstain for the purpose of permitting the Indiana courts to give an authoritative construction of this of the meaning of these words?

Sanford Jay Rosen:

No there has been such suggestion as I note in the proceedings.

There was a parallel State Court proceeding, involving two sets of co-plaintiffs or one set of co-plaintiffs, the American, the Indiana American Independent Party in which again nobody surfaced that particular issue, other counsels were representing the independent party and the Attorney General’s office who may ever represented the Election Board, did not address the issue of the oath.

They were addressing other questions.

Potter Stewart:

It’s one of the problems that, excuse me, I am sorry I didn’t mean to interpret you.

Sanford Jay Rosen:

Excuse me.

Potter Stewart:

It seems to me fair as I understand you and you are broader on the other side that one of the problems here is that you disagree as to what these words mean as a matter of Indiana law.

You say that the the Attorney General has said they mean one thing and you brother says, well, the Attorney General doesn’t have the power to construe the language and that the Supreme Court of Indiana has construed similar language in quite a different way from the way you understand it.

So and there does seem to be a defense of here as to what the words mean, or have I misunderstood.

Sanford Jay Rosen:

I think you have it, it seem to me in the colloquy that just proceeded my rebuttal with Justice Marshall, the Attorney General came right back to an agreement.

Potter Stewart:

Incitement, no he said incitement —

Sanford Jay Rosen:

No he also agreed that other —

Potter Stewart:

Well, I would — since you already told that the Attorney General does not have the power to construe it?

Sanford Jay Rosen:

Technically, he has his —

Potter Stewart:

So whatever is that, it’s not binding?

Sanford Jay Rosen:

He has as much power to construe it I think then the Attorney General of Oklahoma had to construe (Voice Overlap)

Potter Stewart:

Well, it’s matter of Indiana law —

Sanford Jay Rosen:

Indiana law.

Potter Stewart:

I was just wondering about judicial construction by your State Court?

Sanford Jay Rosen:

The State Court has had one judicial attempt to this particular statute that has been cited in both briefs.

This later case is a parallel statute in the Bootash (ph) case and much earlier sedition statute.

I think out of them, you will find a quite in ample indication by the state judiciary what they mean by advocacy and something more than incitement.

Potter Stewart:

Something less than incitement —

Sanford Jay Rosen:

Excuse me something considerably less than incitement.

(Inaudible)

Sanford Jay Rosen:

What can I do with it?

It seem to me that in the Chief Justice’s opinion in Cole he was at great pains to demonstrate that it was the functional equivalent of perfect analog of support of and he went through any number of steps to demonstrate that the first cause of the oath was just the slight a rephrasing of the support of and the second cause was just does either surplusage or an additional rephrasing of the the support of and was really controlled by the first clause.

We have a quite a different situation.

William J. Brennan, Jr.:

You have that analysis to apply here?

Sanford Jay Rosen:

No certainly not.

This oath was a negative disclaimer, I do not advocate found within context of —

William J. Brennan, Jr.:

Because you promise to oppose the overthrow and you say you can promise to oppose overthrow and in the other — according you not to advocate overthrow.

Sanford Jay Rosen:

No I think promising to support overthrow, although —

Byron R. White:

But although the (Inaudible) was I will oppose the overthrow?

Sanford Jay Rosen:

Yes.

Byron R. White:

And you say that can be perfectly that the state may extract that oath, but may not extract a third, another promise that I will not advocate overthrow.

Sanford Jay Rosen:

Well I have a list of reasons for that including one (Voice Overlap) I just stated.

Byron R. White:

(Voice Overlap) Just one good one.

Sanford Jay Rosen:

Just one good one.

The term advocacy itself has a different meaning than post.

It is a term that has been encrusted by numerable decisions of this —

Byron R. White:

You can be advocating the overthrow and yet opposing overthrow?

Sanford Jay Rosen:

I could check — I can personally consciously take the support of it says I oppose overthrow of government.

Sanford Jay Rosen:

If I were put to such as support of meaning that I oppose that as policy, so far as I know the conditions existing in this government at this time I would support the constitution and all of that.

I might also refuse to take an oath that I would be not advocate overthrow because the oath that I do not advocate overthrow is too open ended that really binds my options.

It is really talking to if not (Voice Overlap)

Byron R. White:

Because that is the purpose of the oath —

Sanford Jay Rosen:

But is if you are going to do constitutionally, that goes beyond the support of it says I uphold and defend the constitution.

I can take that oath I can take it to —

Byron R. White:

(Voice Overlap) just go beyond the oath to oppose overthrow?

Sanford Jay Rosen:

Which has been ruled by this Court to be the functional equivalent of the support of.

The advocacy oath takes it several steps further.

It requires me to bind my options in even in terms of hypothetical consideration of a situation in which say there were no takeover the government that attempted to reside within the context, but not the real fact of the Constitution.

I might well advocate overthrow if such a contingency occurred.

So I just do not think that when you put it in a negative using the term advocacy which has been encrusted with this kind of an interpretation by the Court, I think rightfully so.

Warren E. Burger:

Was there any last burden on him then in both to support was the same kind of government, do we find objectionable?

Sanford Jay Rosen:

Well I would not take that of you Your Honor.

If I found the government objectionable when I found it in the office I would like to say that as a conscious of citizen I would not take of, if I found it objectionable in that way.

Warren E. Burger:

I thought you just said that you had it several times taken oath to support.

Well now that oath is outstanding all of the rest of your life?

Sanford Jay Rosen:

It certainly —

Warren E. Burger:

And if this military organization hypothetically took over where you would regard yourself not bound by the oath to given?

Sanford Jay Rosen:

Yes, I think I would regard myself as not bound by the oath as given.

Warren E. Burger:

You want to reserve the option of what kind of government you will or will not (Voice Overlap)

Sanford Jay Rosen:

Oh no not on such a day-to-day basis Your Honor.

I think that we could agree as reasonable man living under constitution that there are certain parameters within which the constitutional government must remain in order for us to be bound by the constitution and the oaths.

The advocacy provision if it is encrusted as I say with the Dennis interpretation and the Yates interpretation and Scales and all that, it says to the oath taker you really have to throw away that agreement on the parameters of constitutional government and tell us that from here on out you will never advocate violence your throwing away options.

We do have I do not want hope to agreement when focused entirely on this point because we think that we have some very powerful other points in the over breadth point.

We do think that articles two to the extent that this is a case involving the Federal law of decision is absolutely preclusive on the States.

That the states really have no power whatsoever to impose any kind of a condition on candidacy for President or electors to the office of President.

That that the open office really precludes everything that otherwise putting any another condition on it is an added condition for office which this Court said cannot be done at least in the legislative context for example in the Powell versus McCormack case.

So I really want that my argument to end on this note that we are relying entirely and exclusively on the over breadth point and we have other arguments as well.

William H. Rehnquist:

Mr. Rosen on the abstention point theory because I am a circuit justice for the Seventh Circuit, I remember a little about this case last fall and it kind of came up very rapidly as I recall and so that the abstention probably was at least thought to be practical at the time.

William H. Rehnquist:

You needed a decision rather and elect — the election board needed some of the advice for it? Is that a fair statement?

Sanford Jay Rosen:

That is a fair statement, but I really not quite understanding the question or how it is from you.

William H. Rehnquist:

Well, Justice Stewart inquired whether anyone had suggested abstention in the case, Then the District Court abstaining to get a binding construction of the statute from the Indiana Supreme Court and my recollection is that this was all pretty much a day-to-day proceeding.

Sanford Jay Rosen:

Indeed it was very much a day-to-day proceeding with the party being put to fairly substantial deadline which he undertook too to me.

William H. Rehnquist:

Well in the board too?

Sanford Jay Rosen:

On the board as well, but the Attorney General’s opinion for example on the party’s ineligibility if it were to file an affidavit and there is such an opinion by the Attorney General that preceded the District Court decision, it was dated August 28 and the party tendered its petitions on the 31st and the amended complaint was filed a week later, the hearing was three weeks later, the split decision came down and then these emergency proceedings took place yes.

So for that reason among others I think no abstention was suggested but I do not think abstention would have been appropriate under Baggett and Bullitt and Dombraski and other decisions of this Court.

Harry A. Blackmun:

Of course that situation is normal in election cases.

Sanford Jay Rosen:

It seems to be Your Honor [Attempt to Laughter], it seems to be.

We really do try to stage our cases in a more orderly fashion in the election context, but deadlines took for it us.

Warren E. Burger:

Thank you Rosen.

Thank you Mr. Attorney General.

The case is submitted.