LOCATION: Supreme Court, Bronx County
DOCKET NO.: 70-21
DECIDED BY: Burger Court (1972-1975)
CITATION: 406 US 583 (1972)
ARGUED: Mar 23, 1972
DECIDED: May 30, 1972
Donald J. Guittar - for appellees
Sanford Jay Rosen - for appellants
Facts of the case
Media for Socialist Labor Party v. Gilligan
Audio Transcription for Oral Argument - March 23, 1972 in Socialist Labor Party v. Gilligan
Warren E. Burger:
We’ll hear arguments next in Number 70-21 Socialist Labor Party and others against Gilligan.
Mr. Rosen, you may proceed whenever you’re ready.
Sanford Jay Rosen:
Mr. Chief Justice and may it please the Court.
This case involves the constitutionality of Ohio Revised Code Section 3517.07 which imposes political tests on access to the ballot in Ohio.
The statute is set out in the appendix in pages 12 through 13.
But it precludes from the ballot in Ohio Elections, and if I may quote briefly from the statute, “Any political party or group which advocates, either directly or indirectly, the overthrow, by force or violence, of our local state or national government or which carries on a program of sedition or treason by radio, speech or press or which has in any manner, any connection with any foreign government or power or which in manner has any connection with any group or organization so connected or so advocating the overthrow by force or violence of these various governments.
Exempted from this requirement of the statute, that the party to get on the ballot actually meet these tests, are parties and groups that have a place on the ballot in each national and gubernatorial election in Ohio since 1900.
Those two parties -- there are only two parties that meet that tests. Of course, those are the Democratic and Republican parties.
Under the statute to secure a ballot position --
You certainly are not suggesting that in the absence of the exception, they couldn’t get on the ballot of this?
Sanford Jay Rosen:
Of course not, Your Honor.
I am implying an argument that I’ll get to some what later which is an equal protection argument that by exempting any parties from this requirement, the State is drawing invidious classification.
And I will come to that argument if I may, Your Honor.
But under the statute, parties that do have to meet this test in fact have to submit an affidavit signed by 10 members of the party or group, three of whom are to be executive officers of the party.
After the affidavit in the form of the statute is executed and filed to the Secretary of State.
The Secretary of State is required to conduct his own investigation of the facts appearing on the affidavit and to make his own determination of whether the party or group should be on the ballot.
Now the plaintiffs brought suit in 1970, challenging this provision as well as any number of other Ohio provisions, but those provisions which were in the litigation have all been washout of this suit by subsequent action of the legislature of Ohio.
We sought an injunctive and declaratory relief from a prejudge statutory Court and on May 5, 1970, the District Court declared the provision, the statute of Ohio unconstitutional on its face, but reading the controlling and only decision of the Ohio Supreme Court on the statute, the State ex rel. Beck v. Hummel case, excuse me, to narrow the statute.
The Court upheld the statute as construed and thus the Court held that the statute now means and this is quote in the appendix of page 62, that an oath is required that; one, the party is not engaged in an attempt to overthrow the Government by force or violence.
Two, the party does not carry on a program of sedition or treason as defined by criminal law.
And three, the party is not knowingly associated with a group attempting to overthrow the Government by force or violence.
Plaintiffs appealed from the denial of their injunction upholding the statute is construed, defendants have cross appealed from so much of the decision of the three-judge District Court holding the statute unconstitutional on its face.
Plaintiffs request this Court to reverse and remand with directions to the District Court to declare entire statute unconstitutional and to enjoin its enforcement in the future.
There are several reasons why the statute is unconstitutional.
Some of these reasons go to the statute on its face, some go to the statute as construed and interpreted by the District Court with the assistance in Ohio Supreme Court and some relate to both.
It’s the position of plaintiffs that the starting point for analysis of this statute is an appreciation of the importance of the right to vote and to gain access to the ballot.
This Court in numerous decisions over the last decades has held for example as in Wesberry versus Sanders, that no right is more precious in a free country than not of having a voice in the election of those who make the laws unto which its good citizens we must live.
Other rights even the most basic are elusory if the right to vote is undermined.
It is our first position in this case, Your Honors that there is an absolute right on the part of the electorate to vote for candidates for public office without the State interposing any kind of a screen between that right to vote and access to the ballot.
This wasn’t a three-judge District Court, was it?