Jenness v. Fortson

PETITIONER:Jenness
RESPONDENT:Fortson
LOCATION:Charlotte-Mecklenburg School District

DOCKET NO.: 5714
DECIDED BY: Burger Court (1970-1971)
LOWER COURT:

CITATION: 403 US 431 (1971)
ARGUED: Mar 01, 1971
DECIDED: Jun 21, 1971

Facts of the case

Question

Audio Transcription for Oral Argument – March 01, 1971 in Jenness v. Fortson

Warren E. Burger:

We will hear arguments next in Number 5714, Jenness against Georgia.

Mr. Rindskopf you may proceed whenever you are ready.

Peter E. Rindskopf:

Mr. Chief Justice, and may it please the Court.

This is an appeal from a three-judge federal court pursuant to 28 United States Code, Section 1253.

That court denied the appellant’s motion for preliminary and permanent injunction against the application and enforcement execution of Georgia code annotated Section 34-1010.

Section 34 of the Georgia Code is the Georgia Election Code, and I think for convenience sake, I will just refer to the individual Sections as for example, Section 1010.

The appellants in this case are the Georgia Socialist Workers Party, candidates for Governor and for two of the congressional districts in the State of Georgia.

Voters who desire to support them and the class of persons who desire an opportunity to consider persons on the ballot other than Democrats and Republicans.

Section 1010 of the Georgia Election Code provides simply that in order to get on the ballot, unless you come within stated exceptions, you must secure the signatures of 5% of the voters who were registered to vote for the office which you see at the last time, it was previously offered for election.

It is a straight 5% of the registered elector.

In the case of the lead appellant, Mrs. Jenness, the candidate for Governor of the Georgia Socialist Workers Party, 5% of the number of the registered voters of the last time the office she sought would come out to be some 88,175 signatures.

Potter Stewart:

There’s no requirement, is there Mr. Rindskopf that the signatures need to come from a specified number of counties or anything such as that?

Peter E. Rindskopf:

No Mr. Justice Stewart, we do not have any distribution problem except insofar as for example in a congressional candidate, the signatures must come from persons —

Potter Stewart:

That should come from the district?

Peter E. Rindskopf:

— in the district.

Potter Stewart:

Or they have to come from the constituency, but the Governor was having the statewide constituency, the —

Peter E. Rindskopf:

That’s correct, anywhere in the state.

Potter Stewart:

Anywhere in the constituency?

Peter E. Rindskopf:

Yes, that’s right.

Potter Stewart:

In other words, for the gubernatorial candidate, they could’ve all come from Fulton County, for example.

Peter E. Rindskopf:

They could have all come from Fulton County, that’s correct.

Warren E. Burger:

The candidate for congressional seat wouldn’t need anything like 80,000 signatures on the petition, would he?

Peter E. Rindskopf:

No Mr. Chief Justice, in the two districts with which we are concerned, which are the congressional districts which to divide the City of Atlanta, the fourth and fifth, the numbers were 10,000 and 11,000.

And —

Harry A. Blackmun:

Mr. Rindskopf, as I remember in Williams against Rhodes, the figure was 15% of actual votes cast, am I correct on that?

Peter E. Rindskopf:

That’s correct.

15% of the vote cast.

Harry A. Blackmun:

And here it is 5% of the registered voters.

Which is the more difficult of the two provisions to meet?

Peter E. Rindskopf:

As we have attempted — as we have shown in our brief at page 8 and page 9, in Georgia, the number of voters is generally about 50% of the number of registered voters, or it has been in the last two gubernatorial elections.

Peter E. Rindskopf:

So the 5% total here actually works out to something in the neighborhood of 10% of the votes cast.

Harry A. Blackmun:

Incidentally, is a write-in permissible in Georgia?

Peter E. Rindskopf:

Write-ins are permissible.

I think —

Warren E. Burger:

Your answer to Justice Blackmun would be what that which is the easier?

Peter E. Rindskopf:

Well, the 5% here comes out to slightly less than the 15% in Ohio. It comes out to about 10% by the Ohio standard.

So Georgia’s requirement is some percentage points easier, in terms of numbers than Ohio’s.

I might add that since that time, Ohio has changed its laws, reduced its percentages and in a three-judge federal court decision this summer, those reduced percentages were held unconstitutional.

There were other factors in Ohio case that are not present in this statute, are there?

Peter E. Rindskopf:

I think that’s certainly, Mr. Justice Harlan.

The first time the case was here, I’m not so certain that it was correct when it was back in Ohio.

They were dealing with a number of the laws which this Court had already struck down.

And it seems that they were pretty well able to isolate out the number of signatures required and strike that down on its own rather than as part of an entangling web, as the court has said.

When I say that the candidates here are candidates of the Georgia Socialist Workers Party, I should point out that the Georgia Socialist Workers Party is a political body according to the laws of Georgia which means two things.

It means first that its candidates failed to receive 20% of the votes, the last time the office of Governor was contested.

And it means that its candidates failed to receive 20% of the nationwide vote for President.

But it also means one more thing.

It means that the party is registered with the office of the Secretary of State pursuant to Section 901 of the Election Code, which basically requires the party to go through the same procedures that a corporation would to register.

It has to file its bylaws, submit the names of its officers and any other information, the Secretary may in fact desire.

The Georgia Socialist Workers Party has complied with this requirement.

Potter Stewart:

This is the status that the Republican Party occupied for quite a long period of time in your state, isn’t it?

Peter E. Rindskopf:

Well, it is and it is not Your Honor.

The Republicans of course have been on the ballot by petition at the last gubernatorial election before this one.

Potter Stewart:

And they were there by petition because they occupied the status of your client?

Peter E. Rindskopf:

That’s correct.

That is correct.

Potter Stewart:

And their candidate in fact then as I remember, got a larger vote than the man who was later declared Governor?

Peter E. Rindskopf:

He received the plurality.

Potter Stewart:

Mr. Bow somebody Callahan, or something?

Peter E. Rindskopf:

Callaway, Your Honor.

Potter Stewart:

Callaway, yes.

Peter E. Rindskopf:

Also pursuant to the Georgia Election Code, the candidates of the Georgia Socialist Workers Party were nominated by the party to be its candidates for office in a convention of the party.

And a certification of their nomination was filed with the Secretary of State.

So we don’t have here exactly the case of completely independent candidates.

The nominees of the party here have had to go through at least one hurdle before they get to the problem of gathering signatures.

Now, on the other hand, party candidates in Georgia belonging to the party which collected 20% of the vote for Governor or President need not gather any signatures at all, nor need their party in its primary secure any definite number of votes before they can get on the ballot for the final election.

And in fact, in the instant case, the number of signatures which Mrs. Jenness would have been required to secure, exceeded the number of votes that were actually cast in the Republican primary for the winner of that primary.

He got some 62,000 votes.

Mrs. Jenness would’ve had to get some 88,000 signatures.

Warren E. Burger:

What was the total cast in the primary?

Peter E. Rindskopf:

Just over a hundred thousand, Your Honor.

So it was slightly in excess of the signature requirement that she was required to meet.

But there is absolutely no requirement once a party qualifies as a party that it in its primary before it put its candidates on the ballot at the final election show any scintilla of voter interest in the party.

Potter Stewart:

Except that the other party must have received at least 20% of the vote at the last previous election?

Peter E. Rindskopf:

At the last previous election.

Potter Stewart:

And that one can infer certain strength and — continuing strength in political organization that is managed to acquire that much vote, I suppose?

Peter E. Rindskopf:

Well, up until very recently of course, Georgia was strictly a one party stand.

Potter Stewart:

Yes, and as you just said, the up until very recently, the Republican party in Georgia occupied the status that your client now occupies?

Peter E. Rindskopf:

That’s correct, that’s correct.

No question.

I might add that the 20% requirement came in for the first time in 1964.

Prior to that time to be a party and be on the ballot regularly, going back to 1943, all you needed was to retain 5% of the vote at previous elections.

Before 1943, going back to the Georgia Code of 1922, anybody could be a candidate who registered himself as such with the Secretary of State.

There was no requirement that his party secure any certain number of votes, nor was there any requirement that he himself get a petition with any number of signatures.

Which is 5%, isn’t that what your argument or what percentage do you think could be alright constitutionally?

Peter E. Rindskopf:

Well, of course I would want to argue that you don’t reach that question in this case because we think the 5% is a restriction on freedom of speech.

But it seems to me that in terms of what’s required in the other states, or the vast majority of those other states require 1% or less.

It seems to me that whatever the reason that the state can come up with for this requirement, it seems to me that really it’s only justification would possibly be to protect the ballot against purely frivolous candidates.

Your First Amendment argument was not that all requirements.

Peter E. Rindskopf:

Yes it would, Your Honor, I think it would.

Peter E. Rindskopf:

Unless of course the state could show some sort of danger which would accrue from unlimited numbers of candidates getting on the ballot.

I don’t think that based on what the Court said about the Ohio case or based upon what the state said below here that there is any sort of conceivable danger.

Harry A. Blackmun:

Mr. Rindskopf, just before the last question, you were tracing the Georgia legislative history and said that at one time there was no percentage requirement at all.

What is the implication of that?

Bring me along a little more closer.

Peter E. Rindskopf:

All right.

The implication of that it seems to me is exactly the same implication that the recent three-judge-court in Ohio in the decision in 318 of the federal supplement, found that when Ohio jumped its requirement from 1% to 7%, and later back to 4%, the state had to show some sort of compelling interest for that increase.

Ohio was unable to show any compelling interest for that increase, similarly in Georgia.

We would say that there has never been any showing by state that the increase from no signature requirement to 5% of the registered voters has been show.

It seems to me that the 5% requirement was adopted completely arbitrarily in 1943, it was continued again in 1964, but there’s never been any showing.

Nothing in the record in this case that there was any difficult —

Byron R. White:

What is the purpose of it in your estimation?

Peter E. Rindskopf:

I really could not say.

It’s not like the situation in Ohio where Henry Wallace received enough votes as to cast some sort of doubt about the result of the election, because in Georgia, going back to 1872, every time there has been a statewide race, the Democrats have carried.

So, it strikes me that it was a revision of the Election Code, and while they were revising it, someone said “Well, we should put in some sort of a requirement.”

There certainly is nothing in the legislative history which would indicate any reason for the change from 0% to 5%.

Potter Stewart:

There’s nothing in Georgia law that would prevent it in any way, Mrs. Jenness or the two congressional candidates from campaigning to the extent they wanted to campaign for the office that they sought, isn’t there?

Having holding meetings, having all the association privileges they want, making all the speeches they wanted.

Passing out all the literature they wanted —

Peter E. Rindskopf:

No it’s just —

Potter Stewart:

— in favor of their candidacy and urging their adherence and supporters to write in their names?

Peter E. Rindskopf:

It’s just as it was in Ohio.

There was no state restriction on doing First Amendment kinds of things.

The restriction is on getting on the ballot.

Potter Stewart:

Well, specifically First Amendment kind of things is rather a broad category.

Peter E. Rindskopf:

Well —

Potter Stewart:

In answer to my question —

Peter E. Rindskopf:

Making speech and having meetings —

Potter Stewart:

— free to campaign, free to organize, free to do whatever they wanted and make speeches and pass out literatures in support of their candidacies, were they not?

Peter E. Rindskopf:

Certainly.

Peter E. Rindskopf:

I don’t think there’s any question that such a restriction would easily fall and we don’t have that here.

There is one specific problem with the write-in vote in Georgia which may not be present in other states.

And that is that there is a direction in the Election Code which requires write-in votes to be counted by the people counting the votes exactly as they are written, so that if there were a write-in vote for Linda Jenness, and another for Mrs. Linda Jenness, those two votes would be counted separately and however many write-in votes went down under the one column or under some wrong spelling would be counted separately, there would be no accumulation of the votes.

Hugo L. Black:

But they would be counted?

Peter E. Rindskopf:

They count write-in votes, yes Mr. Justice Black.

There’s —

Hugo L. Black:

Sometimes get elected don’t they?

Peter E. Rindskopf:

I don’t know of any recent example of a write-in ballot or being elected to Governor in Georgia.

Hugo L. Black:

Well, Georgia, but county officers, imported county officers?

Peter E. Rindskopf:

Well, it’s conceivable.

I don’t think there’s any showing in the record as to whether it is ever happened.

Warren E. Burger:

You mean in Georgia?

Peter E. Rindskopf:

In Georgia.

Hugo L. Black:

But I ces close by Georgia.

Peter E. Rindskopf:

Well, certainly it has happened.

Another restriction on the signature gathering that takes place in Georgia is the requirement that signatures be gathered by a person who is eligible to vote for the office that is being sought.

For example, in the fourth and fifth congressional districts which divide the City of Atlanta, the Socialist Workers Party could not gather signatures in the fifth district with a member of its party who was in fact registered in the fourth district.

And this I think is an impairment.

On the signature gathering requirement, it makes it I think, somewhat more difficult than it appears on its face.

It means that unless the party is distributed equally among congressional districts, its chances of gathering signatures in one district or the other depends not on the membership of the party, but on where the members of that party live.

And possibly —

Warren E. Burger:

Is this true of statewide elections too?

Peter E. Rindskopf:

Well of course in the statewide election anyone living anywhere in the state would be eligible to vote.

Two of the appellants here of course sought congressional districts.

They were not running for at large congressional seats, they were running for specific geographic districts.

A major problem it seems to me along the First Amendment lines is in the problem of one’s FCC privileges whether one can get free or equal time, if one is only a write-in candidate or if one is a candidate who is duly qualified.

FCC or at least the television stations in Georgia have permitted people who are registered with the Secretary of State as write-in candidates to enjoy equal time.

They have not permitted persons who are not registered as write-in candidates and who do not meet the signature requirement to have that equal time. So to that extent, a failure to either register yourself as a write-in candidate or to appear either to register yourself as a write-in candidate or to secure the signatures is in fact a limitation on your ability to appear before the public.

In terms of the candidates here, the record has their affidavits as to poverty, their proceeding In Forma Pauperis in fact in this Court.

The record also contains stipulation of the parties as to the expense that was incurred by the Secretary of State in checking the signatures that were gathered by Mr. Callaway and by Mr. Wallace when they successfully met the petition requirements.

Peter E. Rindskopf:

And those figures are some $77,000.00 and $81,000.00, by the Secretary of State just to verify the signatures which were gathered.

There was no actual showing in the record as to how much it cost to gather those signatures, but it seems to me to be a highly reasonable speculation that it certainly cost at least that amount to go out and physically gather those signatures.

You haven’t brought here the filing of the requirement.

Peter E. Rindskopf:

No, Your Honor, and in fact we successfully challenge that in the lower court, the state has not appealed.

I meant on the statute.

Peter E. Rindskopf:

So, if they were able to get their signatures and show poverty, they could go on the ballot without paying a fee.

I think the argument that the state has made here is illustrative of the fact that the state really has no compelling interest in this requirement.

The state for example has said in its brief that Georgia does not have very restrictive laws, and it points to some examples of other states with more restrictive laws.

For example, states where if you have voted in a party primary, you can not then come along and sign and petition for an independent or a nonpolitical party candidate.

It’s quite true that in Georgia, anybody as long as he is a registered voter can sign a petition.

It doesn’t matter if he intends to go out and vote in the Democratic or the Republican primary the next day.

And it seems to me that this very freeness that Georgia offers indicates that it really doesn’t have any real purpose in imposing the signature requirement.

Byron R. White:

Well, I take it then Mr. Rindskopf, you would be making the same argument if the percentage was 1% or a half a percent.

Peter E. Rindskopf:

Well, I certainly don’t have to make that argument in terms of reasonableness, because of course it is here 5%.

Byron R. White:

I know but it isn’t the reasonableness.

That’s all it is.

If you for example suggested that perhaps the state would have a compelling interest in requiring 1%, then it does come down to a judgment as to how much that is worth, and maybe the state judgments were something —

Peter E. Rindskopf:

Well —

Byron R. White:

Wouldn’t you argue that it’s — that there couldn’t be a compelling interest for even a half a percent?

Peter E. Rindskopf:

I would think Your Honor, subject to the qualification that the state might be able to impose some sort of non-frivolous barrier.

And it seems to me that —

Byron R. White:

Non –what frivolous what?

Peter E. Rindskopf:

Non-frivolous.

I think they might well be able to protect the ballot against completely frivolous candidates.

Byron R. White:

Well, is that a compelling interest?

Peter E. Rindskopf:

I would think it might well be.

Byron R. White:

And how much is that worth, half a percent?

Peter E. Rindskopf:

How can you weigh these things?

Byron R. White:

Well, why isn’t it worth 5%?

Peter E. Rindskopf:

Well, I think to go to as much as 5% or 10% of the actual votes becomes unduly burdensome.

Peter E. Rindskopf:

It becomes, in actual terms, an impossibility for people who do not have some large support.

Warren E. Burger:

By support, do you mean money resources?

Peter E. Rindskopf:

I mean both money Mr. Chief Justice, and people who are members of their party or who might be able to go out and gather signatures for them to say nothing of people who might be willing to sign on their behalf.

Warren E. Burger:

Well, I suppose, at least I could take judicial notice of the fact that some of the very significant political expression in this country has been by young people and others not so young who were pure volunteers who would do these things if they had a belief, if they had a conviction about that particular issue or party.

Now in terms of collecting whether it’s 10,000 names or 5,000 names, isn’t that entirely possible of purely voluntary efforts, if in fact there is a significant support for the views that either that party or that candidate?

Peter E. Rindskopf:

Well, it may very well be that the views will be very unpopular ones, such as socialism in the State of Georgia.

I take the fact that the views may not attract a large number of adherence is not really the determining factor.

Or turning to the young people for example, if in fact they were not registered to vote in Georgia, they would not be eligible to either collect signatures or to sign the petitions themselves.

Warren E. Burger:

Well, when you spoke earlier I think in response to Mr. Justice White, you referred to a compelling state interest and related that to frivolous candidates.

Now did that — did you mean by that the candidate who is frivolous because of his person or his views, or a candidate who is frivolous in the sense that he never could get more than a minimal support?

Peter E. Rindskopf:

I think of the frivolous candidate is someone who qualifies for office just because he wants to see his name on the ballot.

It may well be that even he has First Amendment rights which would be infringed by any such signature requirement.

But in the instant case, they have gone to the trouble of organizing themselves as a political body according to Georgia law.

They have filed papers with the Secretary of State.

They have paid him a minimum fee for filing those papers.

I think they’ve gone far beyond any sort of frivolous question.

Warren E. Burger:

Mr. Castellani?

Robert J. Castellani:

Mr. Chief Justice, and may it please the Court.

Mrs. Jenness’s argument would take on the nominating petition laws is based on two different grounds.

First ground is that she claims there’s a denial of equal protection rights.

The second ground is that she claims these laws violate her right to freedom of association, as has been recognized by this Court in Williams versus Rhodes.

We shall characterize the equal protection argument as the “grass is always greener on the other side” argument.

In Georgia, this has been noted by this Court, there is not this tremendous imbalance between the two paths or methods to get on the general election ballot.

In Williams, we had all the additional burdens that were placed upon third party candidates.

Ohio completely eliminated independent candidates.

In Georgia, except for the actual vehicle itself; that is the petition method as opposed to the primary method, there is not this imbalance.

As a matter of fact, as a result of the three-judge-court decision below, if you go the petition method and you can allege poverty, you do not have to pay any qualifying fees.

We therefore think this lawsuit is bottom on an incorrect assumption.

The assumption that’s incorrect is that a primary method is easier than a petition method.

We believe that if anyone went through both of these methods, he would seriously question this assumption.

Robert J. Castellani:

Now Mrs. Jenness sees a primary as a method whereby a candidate merely sits at home and waits for the votes to come to his door and he’s automatically nominated and authorized to go on the general election ballot.

In fact that is not the case.

A primary candidate has to expend tremendous amounts of energy, his own resources.

He has organizational problems.

The complexities of a campaign particularly for the gubernatorial nomination in Georgia are simply not recognized by Mrs. Jenness when she sees this imbalance between the two methods.

Further, if a general primary candidate is defeated, he never has a chance to get to the general election ballot.

Whereas, with a person who’s going to petition method, once they obtained the required petition, there is no problem with going on the ballot.

They are automatically certified and they on the general election ballot.

Therefore, we believe that while the grass may seem greener to Mrs. Jenness in actual fact, close and a realistic examination of the two methods to get on the general election ballot in Georgia will show that there is no inequality and her claim on this basis must fail.

Harry A. Blackmun:

Your opposition has brought out the fact the 5% figure though is at the high point in comparative figures with other states.

Do you have any comment about that, Mr. Castellani?

Robert J. Castellani:

Yes sir, Mr. Justice Blackmun.

If you only look at the number of petition signatures that are required, Georgia although it’s not the highest is probably higher than most.

However, as we attempted to show in our brief, there are numerous other disabilities that are placed upon petition gatherers in other states that have these lower total requirements.

If I might, some states require that when you sign this petition, you have to agree to support the candidate in the general election.

Georgia has nothing like this at all.

Some states prohibits you from participating in any primary.

As a matter of fact, Mrs. Jenness could participate in the party primary of her choice in Georgia.

She could run as a petition candidate and yet go and vote in the primary and vote for the person that she would most likely lo oppose in the general election.

Some states forbid you to sign any other petition besides the first one, the first person who gets to you.

That’s it.

You are disqualified for either after.

In Georgia, you can sign as many petitions as you want.

Some states require that you must not be registered in any other political party.

At least one state, I believe it’s Rhode Island, they prohibit you from participating in any primary for 26 months after you sign the petition.

Now, we did not make an exhaustive study of all the state laws.

Thurgood Marshall:

Mr. Castellani, why did you pick this method?

Robert J. Castellani:

This —

Thurgood Marshall:

Why did the State of Georgia at this late date want number two to pick the 5%?

Robert J. Castellani:

Well sir, the first — the late date was 1943, secondly this method was because 49 of the 50 states depend upon nominating petitions as an alternative in one form or another.

Robert J. Castellani:

Florida is the only state that I know who does not use the nominating petition method as an alternative.

Thurgood Marshall:

Well, anything happened in Georgia that suddenly made them realize this in good way of doing it?

Robert J. Castellani:

Justice Marshall, I’m not a Georgia historian.

I don’t believe I can answer that question.

It’s —

Thurgood Marshall:

Well, can you answer the 5% question?

Robert J. Castellani:

No sir.

I mean I think that that figure was a —

Thurgood Marshall:

Well what is the state’s interest in the 5%?

Robert J. Castellani:

Well the state’s interest in 5% it seems to me, and I realized that this Court has looked at an awful lot of election cases and you have had the interest thrown at you.

We think that there are probably three interests that probably overlapped.

But the first interest is, has been noted by the Court, completely frivolous candidates for however you wanted to find what you consider frivolous candidates.

We think of them as the personal publicity seekers, a person who’s wasting everyone’s time, if I could use that term.

The second interest is that the national movement today is an attempt to get more people to vote to make it easier to vote, and we’ve had numerous comments about the fact that Georgia had 12 candidates for governor in the primary, and was just too confusing and people just couldn’t make up their mind.

We think that’s an interest to keep it down to serious candidates.

We also believe that by having this requirement, you can — to a certain degree, encourage stability and compromise.

If every splinter group knows that they have unlimited access to the general election ballot, they’re going to just go their own separate ways, and we think that this is not conducive to a good electoral process.

Thurgood Marshall:

I recognize your answer for the general question, but I am still left in a point why 5, instead of 1 or 11/2, 2, 3, 4?

Robert J. Castellani:

And I say there are no legislative materials that I have been able to find that would indicate why five.

Thurgood Marshall:

But you said that before this one, you adopted this you looked at other states.

Did you find the other state with five?

Robert J. Castellani:

Yes, there are other states with five, yes sir Mr. Justice —

Thurgood Marshall:

How many?

Robert J. Castellani:

I don’t remember, I think it’s three or four plus several —

Thurgood Marshall:

Why in a great difficulty in saying —

Robert J. Castellani:

— territories.

Thurgood Marshall:

I was trying to get in line with the other states.

It looked to me like you passed some of them.

Robert J. Castellani:

Oh we did.

We admit that we passed some.

Thurgood Marshall:

Why?

Robert J. Castellani:

Because I attempted to show before —

Thurgood Marshall:

What’s so peculiar in Georgia that you need 5%?

Robert J. Castellani:

Well, they made the figure 5%, and again I can’t say why they chose 5%.

Maybe they thought about 10 and decided to cut it in half.

I just don’t know, I just don’t know.

But the thing is they made it so much easier to gather these petition.

Most of these other states with the 1% or the 1 1/2 or 2% also, and this is what bothers me is that if in another state you go out and you sign one of these petitions, I doubt very seriously that the person who’s gathering these signatures tells you that “Now wait a minute.

If you sign this petition you’re not going to be able to vote in the primary, or that you can’t be registered with another party, or that you’re gong to be disqualified.”

Georgia has opted for the other procedure, 5%.

But as long as you’re registered, sign as many petitions as you want and continue to participate in the political party primaries, and this is their method.

Now I can’t — I couldn’t give you an explanation as to why 5% was chosen.

I’m sorry, I have talked with several people and they just don’t know.

Harry A. Blackmun:

Mr. Castellani, I hope I’m not repeating anything Mr. Justice Marshall asked you because I couldn’t hear his question.

But do you have — do you know of any reason why Georgia moved from no requirement at all to the present one that’s under challenged?

Robert J. Castellani:

I had a guess and unfortunately I did not prepare myself on this point, and I apologize, I probably should have.

I think that previously, Georgia did not authorize anybody, did not allow independent candidates to run.

You had to be a party candidate.

And then I’m not — I think that there are several states where this was the case.

And in my research of this question, this problem has come up.

There were five or six states where you had to be on a party.

Harry A. Blackmun:

So your suspicion is that Georgia moved in the direction of liberality, rather than in the opposite direction?

Robert J. Castellani:

Yes sis, yes sir.

I believe that it had been previous to the 1930’s and the 1940’s before this came in.

I believe there was a — you had to be a party candidate now you couldn’t get out on general election bill.

But I’m not sure about that and I apologize.

Warren E. Burger:

Mr. Castellani, in you recital of possible interests of the state, you did not mention that one, sometimes included, the possible fraud on the voters.

I’m thinking of a case in State of Nebraska some years ago, when Senator George Norris was up for reelection and there was a great effort to defeat him, which I think as I recall the history, succeeded.

And one of the mechanisms was to find the man with the name of George Norris and put him on the ballot to obviously to divide the vote.

Is that whether we call it compelling or not, is that a legitimate state interest to have some limitation whether it’s 5% or 10 or 15 or 3?

Robert J. Castellani:

Yes sir.

I would agree they would.

As I set preface to my remarks, I don’t pretend to be an expert in the area of election laws.

And I think that this Court in its experience is certainly come across more cases and is more aware of the interest that a state has and I could — I think of the ones that I think are the most obvious to most people who are in this area.

But of course this Court surely that is a legitimate consideration.

Thurgood Marshall:

Mr. Castellani, is it true that the primary case, the white primary case that Georgia came around 44’, and prior to that time there wasn’t but one party in Georgia?

Robert J. Castellani:

Which white primary case Mr. Justice –?

Thurgood Marshall:

King Jay.

Robert J. Castellani:

I’m not familiar with that case sir.

Thurgood Marshall:

The case that opened up the white primary to let Negro Republican to vote in the white primary.

It wasn’t a few parties there then, right?

Robert J. Castellani:

Again I said, I’m not familiar with the history of Georgia around 1944, so I —

Thurgood Marshall:

Could this have been to keep out third party?

Could that have been the reason?

Robert J. Castellani:

Could it have been to keep out third party?

Thurgood Marshall:

Yes.

Robert J. Castellani:

I can’t say.

I can’t say what the motive or I can’t say that there was one overriding motive over all these other motives.

I just — I wasn’t there and I haven’t been able to talk with anybody who’s been able to give me one good reason why.

They all have their own versions to what they recall, but that’s it.

And I doubt that that would be evidence before this Court anyway.

Potter Stewart:

Well for a while it not only kept out third parties, it kept out second parties did it?

Robert J. Castellani:

Yes sir, but I’m not so sure that the law is the instrument in which kept out even —

Potter Stewart:

No.

Robert J. Castellani:

— any of the second party.

I think that the historical background —

Potter Stewart:

The fact was that there was the same as just a single party.

Robert J. Castellani:

Yes sir, because the second ground on which these nominating petition laws are challenged are that they violate this freedom of association right that has been recognized by the Court in Williams versus Rhode.

Of course, Williams’ case is the touchstone case in this field.

We hope that this Court can see the differences between Georgia’s laws and Ohio’s laws.

Robert J. Castellani:

This Court several time in its opinion in Williams stressed this entangling web, the totality of the Ohio structure that made it impossible for third parties to get on the general election ballot.

We believe that we have shown that Georgia has only the actual vehicle itself.

That’s the only difference that there is.

Now, we would like also to stress to the Court that this law is not an absolute bar to appearing on the ballot.

It maybe treated by some as the bar, but it is not.

We have indicated before numerous candidates both statewide candidates and local candidates have gained access to the general election ballot through the petition method.

Now —

Byron R. White:

What’s it take to the amount of petition?

Robert J. Castellani:

This is the method under consideration of 5% as we called the petition method as opposed to primary method.

Byron R. White:

Would you say the number they have?

Robert J. Castellani:

Yes sir.

Two most noteworthy examples statewide are of course, George Wallace and before him Howard Bo Callaway, the candidate for governor who received the plurality but did not receive the majority, and this Court decided Fortson versus Morris that the legislature could go ahead and elect and elected his opponent.

And Mrs. Jenness has argued that it is an absolute bar to her because she simply can’t meet it.

Well, we would first say to this Court that there’s nothing in this record to show that she or anyone in her class has ever tried to meet it.

We don’t know what kind of effort would be required because they’ve never tried, or at least the record doesn’t show that they ever tried to go out and gather signatures.

Now we will admit that some expenditure of effort is needed.

However, as we have indicated before, expenditure of effort is also needed to win a primary and we believe that before you can gain access to the general election ballot, the state does have a right to require this showing.

We also would point out to the Court that the court decision below had removed the qualifying fee from paupers.

As this Court also indicated previously, the nominating petition law does not impinge in any way on the right of Mrs. Jenness to meet with others or for choice, the whole public meetings to advocate any idea, to solicit members to her group, or short to do anything else to gain access to the minds of her fellow citizens and to seek to persuade them to her political point of view.

Now, as I had indicated, 49 states have nominating petition laws.

Again, some are higher, most are lower, some the same as Georgia’s.

However, as we’ve indicated, these other restrictions we think can at least point out to this Court why although Georgia on its face may be higher than some of the states, perhaps majority of the states that you can’t just judge nominating petition laws on the number of signatures required.

You need to go deeper into the Election Code into the election scheme if you’re going to make a comparison of Georgia with the other states in the nation.

We would stress to this Court that Election Codes are not static instruments.

They are continuously being revised.

They’re under study by the legislature, at private citizens groups, by interested people.

We would ask this Court to authorize the use of nominating petitions by the 49 states who’d depend on them to help their election laws.

The national movement and election laws today is to make it easier to vote, get people to the polls.

We believe that the petition law has a valid requirement and has — the state has an interest in upholding it.

We would ask this Court to affirm the judgment of the three-judge-court below and authorize its use.

Robert J. Castellani:

Thank you.

Warren E. Burger:

I think we’ll suspend now and let you begin right after lunch Mr. Rindskopf.

Mr. Rindskopf, you have three minutes left.

Peter E. Rindskopf:

I just have the briefest of points, Your Honors.

First one when my opponent says that the 1943 laws were less restrictive than the 1922 laws, he is just plain incorrect.

In 1922 and the Election Code found in the 1922 session laws at page 100, it states very clearly that the names of candidates of each political party and also the names of any other candidates for the offices to be filled are to be placed on the ballot.

And it further provides that all candidates for national and state offices or the proper authorities of the political party nominating them shall file notice of their candidacy, giving their names in the offices for which they are candidates with the Secretary of State.

So the 1943 move from no petition requirements to 5% was in fact more restrictive up until that time anyone could get on the ballot simply by filing a notice of candidacy with the Secretary of State.

The second point I would like to make is in —

Warren E. Burger:

You’re speaking now of the general election.

That could be on the general election ballot?

Peter E. Rindskopf:

That is correct.

The law says “In all elections other than primaries conducted by a political party, it shall be the duty to place on the ballot the names of party nominees and all others who have indicated their wish to be candidates.”

Warren E. Burger:

You care to comment on the state’s interest in terms of preventing fraud on the voters by use the same or similar names of candidates?

Peter E. Rindskopf:

Yes I do.

I think the state is adequately protected here in at least two ways.

First, the closing date for petition requirements is the same date as the closing date for nominees who wish to enter into a party primary, so that you can not come along after the party primary and file a notice of independent candidacy, unless it’s a forgoing conclusion who’s going to win the primary, the —

Warren E. Burger:

Sometimes that is in Georgia, isn’t it?

Peter E. Rindskopf:

Sometimes.

Well, I think the election spirit in Georgia is in a little more rough and tumbled than that.

It’s probably safe to say it’s a forgoing conclusion that the party nominee is going to win.

But there in the —

Hugo L. Black:

But the party nominee with what?

Peter E. Rindskopf:

The Democratic Party nominee usually wins the election.

But there is a second restriction which the state has and legitimately, and that is that party nominees appear on the ballot along with a party designation such as Lester Maddox Democrat, an independent nominee wishing to put a fraud upon the voters by appearing under the same name would not have that party designation.

It seems to me that’s a clear way of preventing what happened to Mr. Norris in Ohio.

Those would be our points and we would have nothing further.

Warren E. Burger:

Thank you Mr. Rindskopf.

Thank you Mr. Castellani.

The case is submitted.