PRINCETON UNIVERSITY

HIGH SCHOOL MOOT COURT COMPETITION

Spring 2012 DOCKET

Let People Vote

v.

Midlands

Supreme Court of the United States

Oral Argument Scheduled for April 2013

Fact Pattern

The plaintiff in this case is Let People Vote (LPV), a political group taking action against the

State of Midlands over the passage of MCS 19/106 on September 1, 2012. This bill, commonly

known as the Midlands Voting Act (MVA), requires applicants registering to vote to pass an

exam that tests both the applicants IQ and civic awareness thirty days prior to Election Day in

order to be able to vote. The operational text of the law reads as follows:

All prospective voters, regardless of previous registration, shall be issued the Midlands

Voting Test as a prerequisite for eligibility to vote in municipal, state, and federal

elections. Said test will include a series of 25 questions, 15 of a type to assess the

Intelligence Quotient of the prospective voter, and 10 of a type to assess the civic

awareness of the prospective voter. These latter questions will consist of a random

sample of questions taken from the US citizenship exam issued as a prerequisite for

naturalization. Passage will be considered answering 70% or more of the questions

correctly. Within one week of passage the voters name shall be instated in the roles of

registered voters. The content of this test will be re-evaluated by the Midlands Board of

Elections no later than ten months prior to each presidential election. (Case Note: See

Appendix 1 for a list of practice questions for a typical US Citizens Exam).

Test administration shall occur under the supervision of the Midlands Secretary of State

at any local offices of the Department of Motor Vehicles. The test is free of charge to

take, and prospective voters may retake the test as many times as he or she sees fit.

Results will be delivered within ten days of the test administration.

The state legislature of Midlands, a generally red-leaning state, narrowly passed the Midlands

Voting Act, as Republicans possessed the majority in both state houses. Not a single Democrat

supported the bill. Republicans who voted for the bill passed it under the premise that the bill

would ensure that voters were making logically-sound decisions, had awareness of how the

political process worked. However the main purpose behind the bill was to prevent non-citizens

from voting illegally with false identification. It is important to note that a third measure of the

bill, which required registering voters to display competence of current events by writing a short

essay on a provided prompt, was ultimately cut from the bill as a compromise due to logistical

and constitutional concerns.

Public opinion polls showed that the vast majority (62%) of Midlands citizens approved of the

passage of the bill, because of concerns that one of Midlands voting districts, District 9, would

be more likely to suffer from voter fraud in the upcoming November 2012 presidential election.

This concern stemmed from the large number of minority illegal immigrants who had moved

into District 9 between December 2010 and August 2012. Over 2000 allegations of voter fraud

were reported state-wide during the Midlands Primary in March 2012; half of these complaints

originated in District 9. Though, as is their sovereign right, the Midlands is concerned about the

potential for fraud, neither District 9 nor Midlands had ever had a longstanding history with voter

fraud in the past. As a result, when making changes to voting procedures under Article I Section

4 of the United States Constitution, the government of Midlands is not required to request

preclearance from the federal government, as some jurisdictions are.

Further background on District 9 is necessary to come to a conclusion in todays case. District 9

is largely made up of a rural part of Midlands. In District 9 is the home of two large factory

complexes owned by Kallis Global Industries and Angelica Exports. Mr. Peter Kallis employs

5,000 workers at his District 9 factory. Kallis employs workers who he knows to be illegal

immigrants. As a part of this lawsuit, Kallis Global Industries records were subpoenaed to

ascertain how many of the corporations workers were undocumented. Kallis Global Industries

General Counsel Taylor Hinojosa refused to hand over the companys records, and filed a

counter-lawsuit, though whistleblower Ray Chao testified to the Midlands Supreme Court that

over 80% of Kallis workers are undocumented. Mr. Peter Angelica has a much smaller factory,

employing only 1,000 workers, but only hires workers who have proof of citizenship. The only

people who live in District 9 are the factory workers and their families. Every worker has a

spouse, and none of the workers have children who are eligible to vote due to their young age.

Each of the factories mandates that its workers work from 9AM -5PM, and workers are not

permitted leave either factory to take their lunch, or else they face termination. Both employers

require that their employees attend work on Election Day. If they do not report to work, they are

fired.

Because of its relatively low population, there is only one polling station in District 9. It is open

from 10AM until 7PM, the standard voting hours of Midlands. The polling station is within

walking distance of both of the factories, though it is significantly closer to Mr. Kallis factory.

Additionally, Midlands does not accept write-in ballots. This means that workers have to vote in

person from 5PM 7PM. There are six voting booths at the site, and it takes a voter ten minutes

to complete the voting process.

The small population of District 9 also means that it only has one Department of Motor Vehicles

Office (DMV). The DMV is open Monday Saturday, from 9AM to 5PM. Because both

employers are so strict, several employees testified that no worker feels comfortable skipping

work, and thus they view Saturday as their only realistic option to conduct business at the DMV.

The Midlands Voting Act was passed in part due to accusations that during the Midlands

Presidential Primary in March 2012, Mr. Peter Kallis used his wealth and influence to accrue

false voter registration documents for thousands of his undocumented workers in an effort to

send them to the polls and create lines long enough to prevent the employees of Angelica

Exports from voting, thus swinging District 9 in favor of the Democratic Party. Though

Midlands Attorney General Brandon Holt found insufficient evidence to press charges, in

response to these allegations, the leadership of the Midlands General Assembly and Senate began

drafting the Midlands Voting Act.

In the course of litigation, the plaintiff hired a social scientist to review the effect that the

Midlands Voting Act would have on the population of Midlands, specifically those living in

District 9. Dr. Alison Lo, an accredited and trusted social scientist who conducted much of the

research on this case, surveyed the participants to learn about their IQ, and knowledge of the

political system. Dr. Los research revealed that 4,300 out of 5,000 (or 86%) of Mr. Kallis

workers failed the test and that 980 out of 1, 000 (or 98%) of Mr. Angelicas workers passed the

test. Additionally, she found that if the law were not to be enacted, Mr. Angelicas workers

would be unable to vote, as Mr. Kallis workers would be able to get to the voting booth well

before Mr. Angelicas, and effectively crowd them out from the booths during that two-hour

window.

On September 9, 2012, Let People Vote sued the Midlands State Government on the grounds

that it was in violation of Section 4 of the Voting Rights Act of 1965 (Case Note: See below for

text of the Act). Before the Midlands State Supreme Court, lawyers for the LPV claimed that the

MVA was unfairly limiting the right to vote for citizens of Midlands, especially those in District

9. In his opinion, Justice Robert Marshall wrote that according to the standard set out by

Anderson v. Celebrezze, the Midlands Voting Act placed an unfair burden on the voters of

District 9, as it forced them to take this test on Saturday, and also because participants would

have a limited number of times they could pass the test before the election. Additionally,

Marshall wrote that the test was a backhanded way for the government to weed out illegal

immigrants. He explain how under the precedent set out by Tashjian v. Republican Party of

Connecticut that the states power to control how elections are orchestrated does not give them

the power to violate minority rights. Marshall concluded that even though this law appeared to be

facially neutral, it was discriminatory in practice, as the minority aliens were unfairly

discriminated against according to Dr. Los research. Finally, Justice Marshall applied the

findings of Norman v. Reed, writing that the Midlands Voting Act was not sufficiently narrow in

scope so as to effectively prevent voter fraud, thus making the any claims to a compelling state

interest void.

The State of Midlands appealed to the US Court of Appeals, 3rd

Circuit. Judge Paige Tsai found

in favor of Midlands, arguing that the burden that the Midlands Voting Act placed on prospective

voters was minimal, using the precedent set forth in Crawford v. Marion County Election Board

as a guide. Additionally, she found that the opinion set forth in Lassiter v. Northampton County

Board of Elections was helpful, insofar as the test that the Midlands Voting Act calls for has

been narrowly tailored to meet the states interests. Furthermore, she wrote how this test was

constitutional as it protected a citizens constitutional right to vote and fell within the State of

Midlands compelling interest to prevent voter fraud under Anderson v. Celebrezze.

The decision was appealed by LPV, and the United States Supreme Court granted writ of

certiorari in December 2012.

In argument, you will either assume the role of the attorneys for the petitioner, LPV, or the

respondent, Midlands State Government. Engage the critical issues and make recommendations

for the constitutionally proper resolution of the case. You should make reference to both the

Constitution and relevant precedents. The only case law that can be sided is provided below.

Although other cases may be cited in the context of the selections, these cases may not be

referenced in the course of argument. Referring to any other case-law or study beyond what is

directly provided will constitute a violation of tournament rules.

Supreme Court of the United States

--------------

Spring 2013 Docket

--------------

Let People Vote,

Petitioner

v.

Midlands,

Respondent

On Writ of Certiorari to the

Third Circuit Court of Appeals

ORDER OF THE COURT ON SUBMISSION

After considering the written briefs of both parties and the record of the Third

Circuit Court of Appeals, this court finds that resolution of the case rests upon

review of statutory and constitutional materials.

It is therefore ordered that counsel present oral argument on the following

questions:

1) Do the principles set forth by the Midlands Voting Act infringe upon the

Fourteenth Amendment rights of Midlands citizens by violating the Voting Rights

Act of 1965?

Relevant Constitutional Provisions

Preamble

We the People of the United States, in Order to form a more perfect Union, establish Justice,

insure domestic Tranquility, provide for the common defence, promote the general Welfare, and

secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this

Constitution for the United States of America.

Article I, Section 4

The times, places and manner of holding elections for Senators and Representatives, shall be

prescribed in each state by the legislature thereof; but the Congress may at any time by law make

or alter such regulations, except as to the places of choosing Senators.

Article III, Section 1

The judicial Power of the United States shall be vested in one supreme Court, and in such

inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of

the supreme and inferior Courts, shall hold their Offices during good behavior, and shall, at

stated Times, receive for their Services a Compensation, which shall not be diminished during

their Continuance in Office.

Fourteenth Amendment

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal protection of the laws.

Fifteenth Amendment The right of citizens of the United States to vote shall not be denied or abridged by the United

States or by any State on account of race, color, or previous condition of servitude.

Twenty Fourth Amendment

The right of citizens of the United States to vote in any primary or other election for President or

Vice President, for electors for President or Vice President, or for Senator or Representative in

Congress, shall not be denied or abridged by the United States or any State by reason of failure

to pay poll tax or other tax.

Comment: Competitors may reference any section of the Constitution, including its

amendments. The above sections are merely highlighted for convenience. Competitors may

reference any piece of the constitutional text that they find useful.

Relevant Legislation

Voting Rights Act (1965)

AN ACT To enforce the fifteenth amendment to the Constitution of the United States, and for

other purposes.

SEC. 2. No voting qualification or prerequisite to voting, or standard, practice, or procedure shall

be imposed or applied by any State or political subdivision to deny or abridge the right of any

citizen of the United States to vote on account of race or color.

SEC. 3. (a) Whenever the Attorney General institutes a proceeding under any statute to enforce

the guarantees of the fifteenth amendment in any State or political subdivision the court shall

authorize the appointment of Federal examiners by the United States Civil Service Commission

in accordance with section 6 to serve for such period of time and for such political subdivisions

as the court shall determine is appropriate to enforce the guarantees of the fifteenth amendment

(1) as part of any interlocutory order if the court determines that the appointment of such

examiners is necessary to enforce such guarantees or (2) as part of any final judgment if the court

finds that violations of the fifteenth amendment justifying equitable relief have occurred in such

State or subdivision: Provided, That the court need not authorize the appointment of examiners if

any incidents of denial or abridgement of the right to vote on account of race or color (1) have

been few in number and have been promptly and effectively corrected by State or local action,

(2) the continuing effect of such incidents has been eliminated, and (3) there is no reasonable

probability of their recurrence in the future.

(b) If in a proceeding instituted by the Attorney General under any statute to enforce the

guarantees of the fifteenth amendment in any State or political subdivision the court finds that a

test or device has been used for the purpose or with the effect of denying or abridging the right of

any citizen of the United States to vote on account of race or color, it shall suspend the use of

tests and devices in such State or political subdivisions as the court shall determine is appropriate

and for such period as it deems necessary.

(c) If in any proceeding instituted by the Attorney General under any statute to enforce the

guarantees of the fifteenth amendment in any State or political subdivision the court finds that

violations of the fifteenth amendment justifying equitable relief have occurred within the

territory of such State or political subdivision, the court, in addition to such relief as it may grant,

shall retain jurisdiction for such period as it may deem appropriate and during such period no

voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to

voting different from that in force or effect at the time the proceeding was commenced shall be

enforced unless and until the court finds that such qualification, prerequisite, standard, practice,

or procedure does not have the purpose and will not have the effect of denying or abridging the

right to vote on account of race or color: Provided, That such qualification, prerequisite,

standard, practice, or procedure may be enforced if the qualification, prerequisite, standard,

practice, or procedure has been submitted by the chief legal officer or other appropriate official

of such State or subdivision to the Attorney General and the Attorney General has not interposed

an objection within sixty days after such submission, except that neither the court's finding nor

the Attorney General's failure to object shall bar a subsequent action to enjoin enforcement of

such qualification, prerequisite, standard, practice, or procedure.

SEC. 4. (a) To assure that the right of citizens of the United States to vote is not denied or

abridged on account of race or color, no citizen shall be denied the right to vote in any Federal,

State, or local election because of his failure to comply with any test or device in any State with

respect to which the determinations have been made under subsection (b) or in any political

subdivision with respect to which such determinations have been made as a separate unit, unless

the United States District Court for the District of Columbia in an action for a declaratory

judgment brought by such State or subdivision against the United States has determined that no

such test or device has been used during the five years preceding the filing of the action for the

purpose or with the effect of denying or abridging the right to vote on account of race or color:

Provided, That no such declaratory judgment shall issue with respect to any plaintiff for a period

of five years after the entry of a final judgment of any court of the United States, other than the

denial of a declaratory judgment under this section, whether entered prior to or after the

enactment of this Act, determining that denials or abridgments of the right to vote on account of

race or color through the use of such tests or devices have occurred anywhere in the territory of

such plaintiff. An action pursuant to this subsection shall be heard and determined by a court of

three judges in accordance with the provisions of section 2284 of title 28 of the United States

Code and any appeal shall lie to the Supreme Court. The court shall retain jurisdiction of any

action pursuant to this subsection for five years after judgment and shall reopen the action upon

motion of the Attorney General alleging that a test or device has been used for the purpose or

with the effect of denying or abridging the right to vote on account of race or color.

If the Attorney General determines that he has no reason to believe that any such test or device

has been used during the five years preceding the filing of the action for the purpose or with the

effect of denying or abridging the right to vote on account of race or color, he shall consent to the

entry of such judgment

(b) The provisions of subsection (a) shall apply in any State or in any political subdivision of a

state which (1) the Attorney General determines maintained on November 1, 1964, any test or

device, and with respect to which (2) the Director of the Census determines that less than 50

percentum of the persons of voting age residing therein were registered on November 1, 1964, or

that less than 50 percentum of such persons voted in the presidential election of November 1964.

A determination or certification of the Attorney General or of the Director of the Census under

this section or under section 6 or section 13 shall not be reviewable in any court and shall be

effective upon publication in the Federal Register.

(c) The phrase "test or device" shall mean any requirement that a person as a prerequisite for

voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret

any matter, (2) demonstrate any educational achievement or his knowledge of any particular

subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of

registered voters or members of any other class.

(d) For purposes of this section no State or political subdivision shall be determined to have

engaged in the use of tests or devices for the purpose or with the effect of denying or abridging

the right to vote on account of race or color if (1) incidents of such use have been few in number

and have been promptly and effectively corrected by State or local action, (2) the continuing

effect of such incidents has been eliminated, and (3) there is no reasonable probability of their

recurrence in the future.

(e)

(1) Congress hereby declares that to secure the rights under the fourteenth amendment of persons

educated in American-flag schools in which the predominant classroom language was other than

English, it is necessary to prohibit the States from conditioning the right to vote of such persons

on ability to read, write, understand, or interpret any matter in the English language.

(2) No person who demonstrates that he has successfully completed the sixth primary grade in a

public school in, or a private school accredited by, any State or territory, the District of

Columbia, or the Commonwealth of Puerto Rico in which the predominant classroom language

was other than English, shall be denied the right to vote in any Federal, State, or local election

because of his inability to read, write, understand, or interpret any matter in the English

language, except that, in States in which State law provides that a different level of education is

presumptive of literacy, he shall demonstrate that he has successfully completed an equivalent

level of education in a public school in, or a private school accredited by, any State or territory,

the District of Columbia, or the Commonwealth of Puerto Rico in which the predominant

classroom language was other than English.

SEC. 5. Whenever a State or political subdivision with respect to which the prohibitions set forth

in section 4(a) are in effect shall enact or seek to administer any voting qualification or

prerequisite to voting, or standard, practice, or procedure with respect to voting different from

that in force or effect on November 1, 1964, such State or subdivision may institute an action in

the United States District Court for the District of Columbia for a declaratory judgment that such

qualification, prerequisite, standard, practice, or procedure does not have the purpose and will

not have the effect of denying or abridging the right to vote on account of race or color, and

unless and until the court enters such judgment no person shall be denied the right to vote for

failure to comply with such qualification, prerequisite, standard, practice, or procedure:

Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced

without such proceeding if the qualification, prerequisite, standard, practice, or procedure has

been submitted by the chief legal officer or other appropriate official of such State or subdivision

to the Attorney General and the Attorney General has not interposed an objection within sixty

days after such submission, except that neither the Attorney General's failure to object nor a

declaratory judgment entered under this section shall bar a subsequent action to enjoin

enforcement of such qualification, prerequisite, standard, practice, or procedure. Any action

under this section shall be heard and determined by a court of three judges in accordance with

the provisions of section 2284 of title 28 of the United States Code and any appeal shall lie to the

Supreme Court.

Comment: Competitors may not reference any other section of the Voting Rights Act in

argument.

Relevant Case Law

JOHN B. ANDERSON V. ANTHONY J. CELEBREZZE, 460 U.S. 780 (1983)

THE SUPREME COURT OF THE UNITED STATES OF AMERICA

SYLLABUS:

An Ohio statute requires an independent candidate for President to file a statement of candidacy

and nominating petition in March in order to appear on the general election ballot in November.

On April 24, 1980, petitioner Anderson announced that he was an independent candidate for

President. Thereafter, on May 16, 1980, his supporters tendered a nominating petition and

statement of candidacy, satisfying the substantive requirements for ballot eligibility, to respondent

Ohio Secretary of State. Respondent refused to accept the documents because they had not been

filed within the time required by the Ohio statute. Anderson and petitioner voters then filed an

action in Federal District Court, challenging the constitutionality of the statute. The District Court

granted summary judgment for petitioners and ordered respondent to place Anderson's name on the

general election ballot, holding that the statutory deadline was unconstitutional under the First and

Fourteenth Amendments. The Court of Appeals reversed, holding that the early deadline served the

State's interest in voter education by giving voters a longer opportunity to see how Presidential

candidates withstand the close scrutiny of a political campaign.

HELD:

Ohio's early filing deadline places an unconstitutional burden on the voting and associational rights

of petitioner Anderson's supporters.

(a) In resolving constitutional challenges to a State's election laws, a court must first consider the

character and magnitude of the asserted injury to the rights protected by the First and Fourteenth

Amendments that the plaintiff seeks to vindicate. It must then identify and evaluate the interests

asserted by the State to justify the burden imposed by its rule. In passing judgment, the Court must

not only determine the legitimacy and strength of each of these interests, it must also consider the

extent to which those interests make it necessary to burden the plaintiff's rights. Only after

weighing all these factors is the court in a position to decide whether the challenged provision is

unconstitutional. Pp. 1568-1570.

(b) The Ohio filing deadline not only burdens the associational rights of independent voters and

candidates, it also places a significant state-imposed restriction on a nationwide electoral process.

A burden that falls unequally on independent candidates or on new or small political parties

impinges, by its very nature, on associational choices protected by the First Amendment, and

discriminates against those candidates and voters whose political preferences lie outside the

existing political parties.

...

(c) None of the three interests that Ohio seeks to further by its early filing deadline justifies that

deadline...The Ohio deadline does not serve any state interest "in maintaining the integrity of the

various routes to the ballot" for the Presidency, because Ohio's Presidential preference primary

does not serve to narrow the field for the general election. Storer v. Brown, 415 U.S. 724, 94 S.Ct.

1274, 39 L.Ed.2d 714, distinguished. The deadline is not drawn to protect the parties from

"intraparty feuding" and may actually impair the State's interest in preserving party harmony.

Justice STEVENS delivered the opinion of the Court.

...

I.

... "[T]he rights of voters and the rights of candidates do not lend themselves to neat separation;

laws that affect candidates always have at least some theoretical, correlative effect on voters."

Bullock v. Carter (1972). Our primary concern is with the tendency of ballot access restrictions "to

limit the field of candidates from which voters might choose." Therefore, "[i]n approaching

candidate restrictions, it is essential to examine in a realistic light the extent and nature of their

impact on voters."

The impact of candidate eligibility requirements on voters implicates basic constitutional rights.

Writing for a unanimous Court in NAACP v. Alabama (1958), Justice Harlan stated that it "is

beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an

inseparable aspect of the 'liberty' assured by the Due Process Clause of the Fourteenth

Amendment, which embraces freedom of speech." In our first review of Ohio's electoral scheme,

Williams v. Rhodes (1968), this Court explained the interwoven strands of "liberty" affected by

ballot access restrictions:

[T]he state laws place burdens on two different, although overlapping, kinds of rightsthe

right of individuals to associate for the advancement of political beliefs, and the right of

qualified voters, regardless of their political persuasion, to cast their votes effectively. Both

of these rights, of course, rank among our most precious freedoms.

As we have repeatedly recognized, voters can assert their preferences only through

candidates or parties or both. ... The right to vote is "heavily burdened" if that vote may be

cast only for major-party candidates at a time when other parties or other candidates are

"clamoring for a place on the ballot." Williams. The exclusion of candidates also burdens

voters' freedom of association, because an election campaign is an effective platform for

the expression of views on the issues of the day, and a candidate serves as a rallying-point

for like-minded citizens.

Although these rights of voters are fundamental, not all restrictions imposed by the States on

candidates' eligibility for the ballot impose constitutionally-suspect burdens on voters' rights to

associate or to choose among candidates. We have recognized that, "as a practical matter, there

must be a substantial regulation of elections if they are to be fair and honest and if some sort of

order, rather than chaos, is to accompany the democratic processes." Storer v. Brown (1974). To

achieve these necessary objectives, States have enacted comprehensive and sometimes complex

election codes. ... [T]he state's important regulatory interests are generally sufficient to justify

reasonable, nondiscriminatory restrictions.

Constitutional challenges to specific provisions of a State's election laws therefore cannot be

resolved by any "litmus-paper test" that will separate valid from invalid restrictions. Storer.

Instead, a court must resolve such a challenge by an analytical process that parallels its work in

ordinary litigation. It must first consider the character and magnitude of the asserted injury to the

rights protected by the First and Fourteenth Amendments. ... It then must identify and evaluate the

precise interests put forward by the State as justifications for the burden imposed by its rule. In

passing judgment, the Court must not only determine the legitimacy and strength of each of those

interests; it also must consider the extent to which those interests make it necessary to burden the

plaintiff's rights. Only after weighing all these factors is the reviewing court in a position to decide

whether the challenged provision is unconstitutional.

...

II.

An early filing deadline may have a substantial impact on independent-minded voters. In election

campaigns, particularly those which are national in scope, the candidates and the issues simply do

not remain static over time...Such developments will certainly affect the strategies of candidates

who have already entered the race; they may also create opportunities for new candidacies. Yet

Ohio's filing deadline prevents persons who wish to be independent candidates from entering the

significant political arena established in the State by a Presidential election campaignand

creating new political coalitions of Ohio votersat any time after mid-to-late March. At this point

developments in campaigns for the major-party nominations have only begun, and the major

parties will not adopt their nominees and platforms for another five months.

...

[The statute] also burdens the signature-gathering efforts of independents who decide to run in time

to meet the deadline. When the primary campaigns are far in the future and the election itself is

even more remote, the obstacles facing an independent candidate's organizing efforts are

compounded.

...

[I]t is especially difficult for the State to justify a restriction that limits political participation by an

identifiable political group whose members share a particular viewpoint, associational preference,

or economic status. "Our ballot access cases ... focus on the degree to which the challenged

restrictions operate as a mechanism to exclude certain classes of candidates from the electoral

process. The inquiry is whether the challenged restriction unfairly or unnecessarily burdens 'the

availability of political opportunity.' " Clements v. Fashing (1982) (plurality opinion), quoting

Lubin v. Panish (1974).

A burden that falls unequally on new or small political parties or on independent candidates

impinges, by its very nature, on associational choices protected by the First Amendment. It

discriminates against those candidates andof particular importanceagainst those voters whose

political preferences lie outside the existing political parties. By limiting the opportunities of

independent-minded voters to associate in the electoral arena to enhance their political

effectiveness as a group, such restrictions threaten to reduce diversity and competition in the

marketplace of ideas. In short, the primary values protected by the First Amendment"a profound

national commitment to the principle that debate on public issues should be uninhibited, robust,

and wide-open," New York Times v. Sullivan (1964)are served when election campaigns are not

monopolized by the existing political parties.

Furthermore, in the context of a Presidential election, state-imposed restrictions implicate a

uniquely important national interest. For the President and the Vice President of the United States

are the only elected officials who represent all the voters in the Nation. Moreover, the impact of

the votes cast in each State is affected by the votes cast for the various candidates in other States.

Thus in a Presidential election a State's enforcement of more stringent ballot access requirements,

including filing deadlines, has an impact beyond its own borders. Similarly, the State has a less

important interest in regulating Presidential elections than statewide or local elections, because the

outcome of the former will be largely determined by voters beyond the State's boundaries.

...

III.

The State identifies three separate interests that it seeks to further by its early filing deadline for

independent Presidential candidates.

...

Voter Education

There can be no question about the legitimacy of the State's interest in fostering informed and

educated expressions of the popular will in a general election. Moreover, the Court of Appeals

correctly identified that interest as one of the concerns that motivated the Framers' decision not to

provide for direct popular election of the President. We are persuaded, however, that the State's

important and legitimate interest in voter education does not justify the specific restriction on

participation in a Presidential election that is at issue in this case.

The passage of time since the Constitutional Convention in 1787 has brought about two changes

that are relevant to the reasonableness of Ohio's statutory requirement that independents formally

declare their candidacy at least seven months in advance of a general election. First...today even

trivial details about national candidates are instantaneously communicated nationwide in both

verbal and visual form. Second ... today the vast majority of the electorate not only is literate but is

informed on a day-to-day basis about events and issues that affect election choices...[I]t is

somewhat unrealistic to suggest that it takes more than seven months to inform the electorate about

the qualifications of a particular candidate simply because he lacks a partisan label.

...

It is also by no means self-evident that the interest in voter education is served at all by a

requirement that independent candidates must declare their candidacy before the end of March...As

we observed in another First Amendment context, it is often true "that the best means to that end is

to open the channels of communication rather than to close them." Virginia Pharmacy Board v.

Virginia Consumer Council (1976).

Equal Treatment

We also find no merit in the State's claim that the early filing deadline serves the interest of treating

all candidates alike. ... The consequences of failing to meet the statutory deadline are entirely

different for party primary participants and independents. The name of the nominees of the

Democratic and Republican parties will appear on the Ohio ballot in November even if they did

not decide to run until after Ohio's March deadline had passed, but the independent is simply

denied a position on the ballot if he waits too long. Thus, under Ohio's scheme, the major parties

may include all events preceding their national conventions in the calculus that produces their

respective nominees and campaign platforms, but the independent's judgment must be based on a

history that ends in March.

...

Political Stability

...The State's brief explains that the State has a substantial interest in protecting the two major

political parties from "damaging intraparty feuding."...Ohio's asserted interest in political stability

amounts to a desire to protect existing political parties from competition. ... In Williams we

squarely held that protecting the Republican and Democratic parties from external competition

cannot justify the virtual exclusion of other political aspirants from the political arena. Addressing

Ohio's claim that it "may validly promote a two-party system in order to encourage compromise

and political stability," we wrote:

...There is, of course, no reason why two parties should retain a permanent monopoly on

the right to have people vote for or against them. Competition in ideas and governmental

policies is at the core of our electoral process and of the First Amendment freedoms.

...

[Storer ] recognized the legitimacy of the State's interest in preventing "splintered parties and

unrestrained factionalism." But we did not suggest that a political party could invoke the powers

of the State to assure monolithic control over its own members and supporters. Political

competition that draws resources away from the major parties cannot, for that reason alone, be

condemned as "unrestrained factionalism." ... Moreover, we pointed out that the policy "involves

no discrimination against independents."

Ohio's challenged restriction is substantially different from the California provisions upheld in

Storer. ... [T]he early filing deadline does discriminate against independents. And the deadline is

neither a "sore loser" provision nor a disaffiliation statute. Furthermore, it is important to

recognize that Storer upheld the State's interest in avoiding political fragmentation in the context of

elections wholly within the boundaries of California. The State's interest in regulating a

nationwide Presidential election is not nearly as strong. ... The Ohio deadline does not serve any

state interest in "maintaining the integrity of the various routes to the ballot" for the Presidency,

because Ohio's Presidential preference primary does not serve to narrow the field for the general

election. ... In addition, the national scope of the competition for delegates at the Presidential

nominating conventions assures that "intraparty feuding" will continue until August.

...

Reversed.

Justice REHNQUIST, with whom Justice WHITE, Justice POWELL, and Justice O'CONNOR

join, dissenting.

Article II of the Constitution provides that "[e]ach State shall appoint, in such Manner as the

Legislature thereof may direct, a Number of Electors" who shall select the President of the United

States. This provision, one of few in the Constitution that grants an express plenary power to the

States, conveys "the broadest power of determination" and "[i]t recognizes that [in the election of a

President] the people act through their representatives in the legislature, and leaves it to the

legislature exclusively to define the method of effecting the object." McPherson v. Blacker (1892)

(emphasis added).

...

[T]he Constitution does not require that a State allow any particular Presidential candidate to be on

its ballot, and so long as the Ohio ballot access laws are rational and allow nonparty candidates

reasonable access to the general election ballot, this Court should not interfere with Ohio's exercise

of its Article II, 1, cl. 2 power.

...

Anderson makes no claim, and thus has offered no evidence to show, that the early filing deadline

impeded his "signature-gathering efforts." That alone should be enough to prevent the Court from

finding that the deadline has such an impact. A statute "is not to be upset upon hypothetical and

unreal possibilities, if it would be good upon the facts as they are." Pullman Co. v. Knott (1914).

What information the record does contain on this point leads to a contrary conclusion. The record

shows that in 1980 five independent candidates submitted nominating petitions with the necessary

5,000 signatures by the March 20 deadline and thus qualified for the general election ballot in

Ohio.

...

[T]he effect of the Ohio filing deadline is quite easily summarized: it requires that a candidate,

who has already decided to run for President, decide by March 20 which route his candidacy will

take. ... Anderson ... submitted in a timely fashion his nominating petition for Ohio's Republican

Primary. Then, realizing that he had no chance for the Republican nomination, Anderson sought to

change the form of this candidacy. The Ohio filing deadline prevented him from making this

change. Quite clearly, rather than prohibiting him from seeking the Presidency, the filing deadline

only prevented Anderson from having two shots at it in the same election year.

Thus, Ohio's filing deadline does not create a restriction "denying the franchise to citizens."

Likewise, Ohio's filing deadline does not create a restriction that makes it "virtually impossible" for

new-party candidates or nonparty candidates to qualify for the ballot, such as those addressed in

Williams, Bullock, and Lubin. ... [W]e are not without guidance from prior decisions by this

Court.

In Storer, the Court was faced with a California statute prohibiting an independent candidate from

affiliating with a political party for 12 months preceding the primary election. This required a

prospective candidate to decide on the form of his candidacy at a date some eight months earlier

than Ohio requires. In upholding, in the face of a First Amendment challenge, this disaffiliation

statute and a statute preventing candidates who had lost a primary from running as independents,

the Court determined that the laws were "expressive of a general state policy aimed at maintaining

the integrity of various routes to the ballot," and that the statutes furthered "the State's interest,"

described by the Court as "compelling," "in the stability of its political system."...The similarities

between the effect of the Ohio filing deadline and the California disaffiliation statute are obvious.

Refusing to own up to the conflict its opinion creates with Storer, the Court tries to distinguish it,

saying that it "did not suggest that a political party could invoke the powers of the State to assure

monolithic control over its own members and supporters." The Court asserts that the Ohio filing

deadline is more like the statutory scheme in Williams, which were designed to protect " 'two

particular partiesthe Republicans and the Democratsand in effect tends to give them a

complete monopoly.' "...But this simply is not the case. The Ohio filing deadline in no way makes

it "virtually impossible"...for new parties or nonparty candidates to secure a position on the general

election ballot...What the Ohio filing deadline prevents is a candidate such as Anderson from

seeking a party nomination and then, finding that he is rejected by the party, bolting from the party

to form an independent candidacy. This is precisely the same behavior that California sought to

prevent by the disaffiliation statute this Court upheld in Storer.

...

The Court further notes that "Storer upheld the State's interest in avoiding political fragmentation

in the context of elections wholly within the boundaries of California. The State's interest in

regulating a nationwide Presidential election is not nearly as strong."...The Court's characterization

of the election simply is incorrect. The Ohio general election in 1980, among other things, was for

the appointment of Ohio's representatives to the Electoral College. The Court...fails to come to

grips with this fact. While Ohio may have a lesser interest in who is ultimately selected by the

Electoral College, its interest in who is supported by its own Presidential electors must be at least

as strong as its interest in electing other representatives.

...

The point the Court misses is that in cases like this and Storer, we have never required that States

meet some kind of "narrowly tailored" standard in order to pass constitutional muster. In

reviewing election laws like Ohio's filing deadline, we have said before that a court's job is to

ensure that the State "in no way freezes the status quo, but implicitly recognizes the potential

fluidity of American political life." Jenness v. Fortson (1971). If it does not freeze the status quo,

then the State's laws will be upheld if they are "tied to a particularized legitimate purpose, and [are]

in no sense invidious or arbitrary." Rosario v. Rockefeller (1973). The Court tries to avoid the

rules set forth in some of these cases, saying that such rules were "applicable only to party

primaries" and that "this case involves restrictions on access to the general election ballot." The

fallacy in this reasoning is quite apparent: one cannot restrict access to the primary ballot without

also restricting access to the general election ballot.

...

The Ohio filing deadline easily meets the test described above. [T]he interest of the "stability of its

political system," Storer, ... alone is sufficient to support Ohio ballot access laws...But this is not

the only interest furthered by Ohio's laws. Ohio maintains that requiring an early declaration of

candidacy gives its voters a better opportunity to take a careful look at the candidates and see how

they withstand the close scrutiny of a political campaign...But the Court finds that "the State's

important and legitimate interest in voter education does not justify the specific restriction on

participation in a Presidential election that is at issue in this case."

...

I cannot agree with the suggestion that the early deadline reflects a lack of "faith" in the voters.

That Ohio wants to give its voters as much time as possible to gather information on the potential

candidates would seem to lead to the contrary conclusion...Besides, the Court's assertion that it

does not take seven months to inform the electorate is difficult to explain in light of the fact that

Anderson allowed himself some 19 months to complete this task; and we are all well aware that

Anderson's decision to make an early go of it is not atypical.

...

BARBARA J. NORMAN V. DOROTHY REED, 502 U.S. 279 (1992)

THE SUPREME COURT OF THE UNITED STATES OF AMERICA

SYLLABUS:

Illinois citizens wishing to establish "new political party" may field candidates for statewide

office after collecting the signatures of 25,000 eligible voters, and they may field candidates

solely for offices in a large "political subdivision" upon collecting the signatures of 25,000

subdivision voters. Ill.Rev.Stat., ch. 46, 10-2. However, when a subdivision comprises large

separate districts from which some of its officers are elected, party organizers seeking to fill such

offices must collect 25,000 signatures from each district. Ibid. A new political party becomes an

"established political party" if it receives 5% of the vote in the next election, but a party that has

not engaged in a statewide election can become "established" only in a subdivision where it has

fielded candidates. Petitioners sought to expand the Harold Washington Party (HWP), an

established party in Chicago, to Cook County, a subdivision comprising two electoral districts: a

city district and a suburban district. Before the 1990 elections, they presented the county with a

petition containing 44,000 signatures from the city district and 7,800 signatures from the

suburban district and a slate of candidates for both at large and district-specific seats. Respondent

Reed and other voters (collectively, Reed) filed objections with the Cook County Officers

Electoral Board (Board). The Board rejected Reed's claim that 10-5 - which prohibits a new party

from bearing an established party's name - prevented petitioners from using the HWP name,

holding that 10-5's purpose was to prevent persons not affiliated with a party from latching on to

its name, thus causing voter confusion and denigrating party cohesiveness, and that these dangers

were not present here, since one Evans - the only HWP candidate to run in Chicago's most recent

election - had authorized petitioners to use the name. The Board also found that petitioners'

failure to gather 25,000 signatures from the suburbs disqualified the HWP candidates wishing to

run for suburban district seats, but not those running for city district and countywide offices, and

that petitioners' failure to designate HWP candidates for judicial seats did not disqualify the

entire slate. The County Circuit Court affirmed the Board's [502 U.S. 279, 280] ruling on the

use of the HWP name, but held that the entire slate was doomed under 10-2 by the failure to

obtain sufficient suburban district signatures and, alternatively, the failure to list any judicial

candidates. The State Supreme Court held that 10-5 prohibited petitioners from using the HWP

name, and that, under 10-2, the failure to gather enough suburban district signatures disqualified

the entire slate. This Court granted petitioners' application for a stay, permitting them to run in

the election. Although no HWP candidates were elected, several received over 5% of the vote,

which would qualify the HWP as an "established political party" within all or part of the county

in the next election.

HELD:

1. The controversy is not moot, even though the 1990 election is over, both because it is "capable

of repetition yet evading review..."

(a) [A] State may limit new parties' access to the ballot only to the extent that a sufficiently

weighty state interest justifies the restriction. Any severe restriction must be narrowly drawn to

advance a state interest of compelling importance.

...

(c) Similarly, disqualifying all HWP candidates because of the failure to collect 25,000

signatures in each district is not the least restrictive [502 U.S. 279, 281] means of advancing

Illinois' interest in limiting the ballot to parties with demonstrated public support, since it would

require petitioners to collect twice as many signatures to field candidates in the county as they

would need if they wished to field candidates for statewide office.

(d) Nonetheless, requiring candidates for suburban district offices to obtain 25,000 nominating

signatures from the suburbs does not unduly burden their right to run under the HWP name. Just

as the State may not cite the HWP's failure in the suburbs as reason for disqualifying its

candidates in the city district, neither may the HWP cite its success in the city district as a

sufficient condition for running candidates in the suburbs.

Affirmed in part, reversed in part, and remanded.

Justice SOUTER, delivered the opinion of the Court.

In these consolidated cases, we review a decision of the Supreme Court of Illinois barring

petitioners in No. 90-1126 (petitioners) from appearing under the name of the Harold

Washington Party on the November 1990 ballot for Cook County offices. We affirm in part,

reverse in part, and remand for further proceedings not inconsistent with this opinion....

I.

In due course, petitioners filed a petition for certiorari in No. 90-1126, and the Board, a

respondent in that action, filed its own petition in No. 90-1435. We granted each on May 20,

1991. 500 U. S. 931 (1991).

II.

We start with Reed's contention that we should treat the controversy as moot because the election

is over. We should not. Even if the issue before us were limited to petitioners' eligibility to use

the Party name on the 1990 ballot, that issue would be worthy of resolution as "`capable of

repetition, yet evading review.' "Moore v. Ogilvie, 394 U. S. 814, 816 (1969). There would be

every reason to expect the same parties to generate a similar, future controversy subject to

identical time constraints if we should fail to resolve the constitutional issues that arose in 1990.

The matter before us carries a potential of even greater significance, however. As we have noted,

the 1990 electoral results would entitle the HWP to enter the next election as an established party

in all or part of Cook County, freed from the petition requirements of 10-2, so long as its

candidates were entitled to the places on the ballot that our stay order effectively gave them. This

underscores the vitality of the questions posed, even though the election that gave them life is

now behind us.

III.

For more than two decades, this Court has recognized the constitutional right of citizens to create

and develop new political parties. The right derives from the First and Fourteenth

Amendments and advances the constitutional interest of like-minded voters to gather in pursuit

of common political ends, thus enlarging the opportunities of all voters to express their own

political preferences. See Anderson v. Celebrezze, 460 U. S. 780, 793-794 (1983); Illinois Bd. of

Elections v. Socialist Workers Party, 440 U. S. 173, 184 (1979); Williams v. Rhodes,393 U. S.

23, 30-31 (1968). To the degree that a State would thwart this interest by limiting the access of

new parties to the ballot, we have called for the demonstration of a corresponding interest

sufficiently weighty to justify the limitation, see Anderson, supra, at 789, and we have

accordingly required any severe restriction to be narrowly drawn to advance a state interest of

compelling importance. See Socialist Workers Party, supra, at 184, 186. By such lights we now

look to whether 10-2 and 10-5, as construed by the Supreme Court of Illinois, violate

petitioners' right of access to the Cook County ballot.

A.

Reversing the judgment of the Circuit Court, the State Supreme Court held, under 10-5, that

the Cook County candidates could not claim to represent the HWP because there already was a

party by that name in the city of Chicago. The court gave no reasons for so concluding beyond

declaring that "petitioner[s'] use of the Harold Washington Party name in their petition . . .

violate[d] the provisions of section 10-5," which, the court noted, "prohibits use of the name of

an established political party." Thus, the issue on review is not whether the Chicago HWP and

the Cook County HWP are in some sense "separate parties," but whether and how candidates

running for county office may adopt the name of a party established only in the city.

While the Board based its answer to this question on a determination that the city HWP had

authorized petitioners to use the Party name, the State Supreme Court's order seems to exclude

the very possibility of authorization, reading the prohibition on the "use of the name of an

established political party" so literally as to bar candidates running in one political subdivision

from ever using the name of a political party established only in another. As both the dissent

below and the opinion of the Board suggest, however, this Draconian construction of the statute

would obviously foreclose the development of any political party lacking the resources to run a

statewide campaign. Just as obviously, 10-5, as the State's highest court apparently construed

it, is far broader than necessary to serve the State's asserted interests.

To prevent misrepresentation and electoral confusion, Illinois may, of course, prohibit candidates

running for office in one subdivision from adopting the name of a party established in another if

they are not in any way affiliated with the party. The State's interest is particularly strong where,

as here, the party and its self-described candidates coexist in the same geographical area. But

Illinois could avoid these ills merely by requiring the candidates to get formal permission to use

the name from the established party they seek to represent, a simple expedient for fostering an

informed electorate without suppressing the growth of small parties. Thus, the State Supreme

Court's inhospitable reading of 10-5 sweeps broader than necessary to advance electoral order

and accordingly violates the First Amendment right of political association. See Anderson,

supra, at 793 794; Williams, supra, at 30-34.

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For her part, when Reed argues that the county Party, led by R. Eugene Pincham, is "different

from" the Party established in the city of Chicago under the leadership of Timothy Evans, she

may indeed be suggesting that the city Party failed to authorize the Cook County candidates to

use the Party name. But Reed offers no support at all for that assumption, which stands at odds

with what few relevant facts the record reveals. The Electoral Board found that Timothy Evans,

the Party's most recent mayoral candidate in the city of Chicago, had specifically authorized

petitioners' use of the Party name in Cook County. While acknowledging that Evans was not the

statutory chairman of the Chicago Party, the Board ruled, and Reed does not dispute, that Evans,

"as the only candidate of the Chicago HWP," was "the only person empowered by the Election

Code to act in any official capacity for the HWP." We have no authoritative ruling on Illinois

law to the contrary, and Reed advances no legal argument for the insufficiency of Evans'

authorization.

To be sure, it is not ours to say that Illinois law lacks any constitutional procedural mechanism

that petitioners might have been required to, but did not, follow before using the Party name. Our

review of 10-2 reveals the possibility that Illinois law empowers a newly established party's

candidate or candidates (here, Evans) merely to appoint party "committeemen," whose authority

to "manage and control the affairs" of the party might include an exclusive right to authorize the

use of its name outside the party's original political subdivision. It seems unlikely, however, that

the Supreme Court of Illinois had such reasoning in mind. Any limitation on Evans's power to

authorize like-minded candidates to use the Party name would have had to arise under 10-2,

whereas the order below held simply that petitioners' use of the Party name "violate[d] the

provisions of section 10-5." In any event, it is not this Court's role to review a state-court

decision on the basis of inconclusive and unargued theories of state law that the state court itself

found unworthy of mention.

B.

As an alternative basis for prohibiting petitioners from running together under the Party name,

the Supreme Court of Illinois invoked the statutory requirement of 10-2 that "[e]ach

component of the petition for each district . . . be signed by [25,000] qualified voters of the

district . . . ." The court apparently held that disqualification of a party's entire slate of candidates

is the appropriate penalty for failing to meet this requirement, and it accordingly treated

petitioners' failure to collect enough signatures for their suburb and district candidates as an

adequate ground for disqualifying every candidate running under the HWP name in Cook

County.

This is not our first time to consider the constitutionality of an Illinois law governing the number

of nominating signatures the organizers of a new party must gather to field candidates in local

elections. In Illinois Bd. of Elections v. Socialist Workers Party, 440 U. S. 173 (1979), we

examined Illinois's earlier ballot-access scheme, under which party organizers seeking to field

candidates in statewide elections were (as they still are) effectively required to gather 25,000

signatures. See 10-2. At that time, the statute separately required those organizing new parties

in political subdivisions to collect signatures totaling at least 5% of the number of people voting

at the previous election for offices of that subdivision. In the city of Chicago, the subdivision at

issue in Socialist Workers Party, the effect of that provision was to require many more than

25,000 signatures. Although this Court recognized the State's interest in restricting the ballot to

parties with demonstrated public support, the Court took the requirement for statewide contests

as an indication that the more onerous standard for local contests was not the least restrictive

means of advancing that interest. Id., at 186.

The Illinois Legislature responded to this ruling by amending its statute to cap the 5%

requirement for "any district or political subdivision" at 25,000 signatures. Thus, if organizers of

a new party wish to field candidates in a large county without separate districts, and if 5% of the

number of voters at the previous county election exceeds 25,000, the party now needs to gather

only 25,000 signatures.

Under the interpretation of 10-2 rendered below, however, Illinois law retains the

constitutional flaw at issue in Socialist Workers Party by effectively increasing the signature

requirement applicable to elections for at least some offices in subdivisions with separate

districts. Under that interpretation, the failure of a party's organizers to obtain 25,000 signatures

for each district in which they run candidates disqualifies the party's candidates in all races

within the subdivision. Thus, a prerequisite to establishing a new political party in such multi

district subdivisions is some multiple of the number of signatures required of new statewide

parties. Since petitioners chose to field candidates for the county board seats allocated to the

separate districts and, as required by state law, used the "component" (i. e., district specific) form

of nominating petition, the State Supreme Court's construction of 10-2 required petitioners to

accumulate 50,000 signatures (25,000 from the city district and another 25,000 from the suburbs)

to run any candidates in Cook County elections. The State may not do this in the face of Socialist

Workers Party, which forbids it to require petitioners to gather twice as many signatures to field

candidates in Cook County as they would need statewide.

Reed nonetheless tries to skirt Socialist Workers Party by advancing what she claims to be a

state interest, not addressed by the earlier case, in ensuring that the electoral support for new

parties in a multi district political subdivision extends to every district. Accepting the legitimacy

of the interest claimed would not, however, excuse the requirement's unconstitutional breadth.

Illinois might have compelled the organizers of a new party to demonstrate a distribution of

support throughout Cook County without at the same time raising the overall quantum of needed

support above what the State expects of new parties fielding candidates only for statewide office.

The State might, for example, have required some minimum number of signatures from each of

the component districts while maintaining the total signature requirement at 25,000. But

cf. Moore v. Ogilvie, 394 U. S. 814 (1969). While we express no opinion as to the

constitutionality of any such requirement, what we have said demonstrates that Illinois has not

chosen the most narrowly tailored means of advancing even the interest that Reed suggests.

Nor is that the only weakness of Reed's rationale. Illinois does not require a new party fielding

candidates solely for statewide office to apportion its nominating signatures among the various

counties or other political subdivisions of the State. See 10-2; Communist Party of

Illinois v.State Bd. of Elections, 518 F. 2d 517 (CA7), cert. denied, 423 U. S. 986 (1975).

Organizers of a new party could therefore win access to the statewide ballot, but not the Cook

County ballot, by collecting all 25,000 signatures from the county's city district. But if the State

deems it unimportant to ensure that new statewide parties enjoy any distribution of support, it

requires elusive logic to demonstrate a serious state interest in demanding such a distribution for

new local parties. Thus, as in Socialist Workers Party, the State's requirements for access to the

statewide ballot become criteria in the first instance for judging whether rules of access to local

ballots are narrow enough to pass constitutional muster. Reed has adduced no justification for the

disparity here.[10]

C.

Up to this point, the positions of petitioners and the Board have coincided. They diverge on only

one matter: whether requiring the candidates for the suburban-district commissioner seats to

obtain 25,000 nominating signatures from the suburbs unduly burdens their right to run for those

seats under the Party name. Although petitioners suggest that their showing of support in the city

district should qualify their candidates to represent the Party in all races within Cook County, in

the absence of any claim that the division of Cook County into separate districts is itself

unconstitutional, our precedents foreclose the argument. According to the Board's uncontested

arithmetic, the 25,000 signature rule requires the support of only slightly more than 2% of

suburban voters, see Brief for Respondent Board in No. 90-1126, p. 9, and n. 7, a considerably

more lenient restriction than the one we upheld in Jenness v. Fortson, 403 U. S. 431

(1971) (involving a 5% requirement). Just as the State may not cite the Party's failure in the

suburbs as reason for disqualifying its candidates in urban Cook County, neither may the Party

cite its success in the city district as a sufficient condition for running candidates in the suburbs.

IV.

These cases present one final issue, which we are unable to resolve. Some of Cook County's

judges are elected by citizens of the entire county, and others by citizens of the separate districts.

In responding to Reed's objection that the HWP had not fielded candidates for any elected

judicial offices in Cook County, the Circuit Court held that, under 10-2, "the exclusion of

judicial candidates on the slate was a failure to fulfill the `complete slate requirement' of the

Election Code." The court then overruled the Electoral Board and treated this failure as an

alternative ground for invalidating the Party's entire slate.

We decline to consider whether that ruling was constitutional. The Supreme Court of Illinois

itself did not address it and therefore did not decide whether, under Illinois law, the Party's

omission of judicial candidates doomed the entire slate. We therefore remand these cases to that

court for its prompt resolution of this issue. See Bacchus Imports, Ltd. v. Dias,468 U. S. 263,

277 (1984); see also McCluney v. Jos. Schlitz Brewing Co., 454 U. S. 1071, 1073-1074 (1981)

(Stevens, J., dissenting).

The judgment of the State Supreme Court is affirmed in part and reversed in part, and the cases

are remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice THOMAS took no part in the consideration or decision of these cases.

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Justice SCALIA, dissenting.

In the absence of an opinion by the Illinois Supreme Court defending its own judgment, and

lacking any clear alternative analysis presented by respondents, the Court accepts petitioners'

characterization of these cases as involving straightforward application of our decision

invalidating a previous version of the Illinois election law, Illinois Bd. of Elections v. Socialist

Workers Party, 440 U. S. 173 (1979). That characterization is in my view wrong, and leads to the

wrong result. No proper basis has been established in these cases for interfering with the State of

Illinois' arrangement of its elections.

Socialist Workers Party involved a challenge to Illinois' then-requirement that, in elections for

offices in political subdivisions of the State, new political parties (and independent candidates)

had to obtain the signatures of 5% of the number of persons who voted at the previous election

for those offices, no matter how high that number might be even though new parties could

qualify for statewide elections by gathering only 25,000 signatures. See id., at 175-176. The

Socialist Workers Party objected to having to collect over 60,000 signatures to run a candidate in

the Chicago mayoral election. See id., at 177. We held that, although the State had a legitimate

interest in ensuring that a party or independent candidate had a "`significant modicum of

support,' " there was "no reason" justifying a requirement of greater support for Chicago

elections than for statewide elections. Id., at 185-186.

The Court contends that the current Illinois law, as interpreted by the Illinois Supreme Court,

suffers from the same "constitutional flaw": It "effectively increas[es] the signature requirement

applicable to elections for at least some offices in subdivisions with separate districts [because]

the failure of a party's organizers to obtain 25,000 signatures for each district in which they run

candidates disqualifies the party's candidates in all races within the subdivision." Ante, at 293.

Thus, "a prerequisite to establishing a new political party in such multi district subdivisions is

some multiple of the number of signatures required of new statewide parties." Ibid.

This analysis serves only to demonstrate why Socialist Workers Party is distinguishable. There is

no heightened signature requirement (as there was in Socialist Workers Party ) for any single

office; each candidate (and the party) for each district election and each county wide election

need obtain no more than 25,000 signatures. What creates "effectively," as the Court says, a sort

of heightened signature minimum is the requirement that a new party run a "complete slate," i.

e., a candidate in each of the subdivision's districts. By virtue of that requirement, no one can

run as a new-party candidate in any district unless there are not only 25,000 signatures for him

in his own district, but also 25,000 votes for the party's candidate in each of the other districts.

Such indirect consequences of a "complete slate" requirement were, of course, not at issue

in Socialist Workers Party, which involved a single election for an at-large position.

Thus, Socialist Workers Party is not at all dispositive of these cases.

It seems clear that the "complete slate" rule advances a legitimate state interest. It is reasonable

to require a purported "party," which presumably has policy plans for the political subdivision, to

run candidates in all the districts that elect the multimember board governing the subdivision.

Otherwise, it is less a "party" than an election committee for one member of the board. The Court

ultimately concedes this, and concedes that this state interest was not involved (and

therefore not taken into account) in Socialist Workers Party. Ante, at 293-294. It nonetheless

argues that this makes no difference, because: (1) Illinois could have achieved its interest in

multi district support for the party by requiring that some proportion of the total signatures be

from each district, but requiring no more than a 25,000 total, ibid.; and (2) multi district support

is not an interest that Illinois considers important, since it "does not require a new party fielding

candidates solely for statewide office to apportion its nominating signatures among the various

counties or other political subdivisions of the State," ante, at 294.

I find neither response persuasive. As to the first: We did not say in Socialist Workers Party that

the constitutionally permissible number for qualification in the various political subdivisions of

the State had to be some fraction (presumably based on population) of the statewide 25,000

figure; to the contrary, we permitted the State to require in political subdivisions any number up

to 25,000. Illinois has simply taken us at our word. Nor does this amount to an irrational failure

to "apportion." Illinois' genuine minimum, we must recall, is a percentage (5%) of the votes in

the prior election, which of course automatically adjusts for the size of the electoral unit. The

25,000 figure is simply a cap upon that minimum, and it is not at all reasonable to think an

"apportionment" of that cap will assure serious voter support. As to the second argument: The

fact that Illinois does not require geographic distribution of support for statewide office is

irrelevant. Neither does it require geographic distribution, as such, in these Cook County

elections. It does not care if all of the support for the Harold Washington Party, in each district

wide election, comes from a single ward just as it does not care, in statewide elections, if all

of a new party's support comes from a single county. What the law under challenge here reflects

is not concern for geographically distributed support, but concern for serious support in each

election; and when some of the elections are not at large but by district, the support must exist

within each district.

Perhaps there are reasons why Illinois' "complete slate" requirement for political subdivisions is

constitutionally invalid. The point might be made, for example, that the absence of any such

requirement in statewide elections demonstrates (to take the Court's language erroneously

addressed to a different point) that Illinois "deems [the requirement] unimportant," and has no

"serious state interest" in it. Ante, at 294. But as American political scientists have known since

James Madison pointed it out, see The Federalist No. 10, pp. 62-64 (H. Dawson ed. 1876), the

dangers of factionalism decrease as the political unit becomes larger. There is not much chance

the State as a whole will be hamstrung by a multitude of so-called "parties," each of which

represents the sectional interest of only one or a few districts; there is a real possibility that the

Cook County Board will be stalemated by an equal division between "City Party" and "County

Party" members. But the litigants here have not addressed whether the "complete slate"

requirement is unconstitutional, and I decline to speculate. It must be assumed to be legitimate,

in which case there is no basis for saying that 25,000 signatures for each district election (if that

is less than 5% of the votes in the prior district election) cannot be demanded. The Court's

holding that these cases are simply governed by Socialist Workers Party seems to me quite

wrong. I respectfully dissent.

ALAN B. BURDICK V. MORRIS TAKUSHI, 504 U.S. 428 (1992)

THE SUPREME COURT OF THE UNITED STATES

SYLLABUS:

Petitioner, a registered Honolulu voter, filed suit against respondent state officials, claiming that

Hawaii's prohibition on write in voting violated his rights of expression and association under the

First and Fourteenth Amendments. The District Court ultimately granted his motion for summary

judgment and injunctive relief, but the Court of Appeals reversed, holding that the prohibition,

taken as part of the State's comprehensive election scheme, does not impermissibly burden the

right to vote.

HELD:

Hawaii's prohibition on write in voting does not unreasonably infringe upon its citizens' rights

under the First and Fourteenth Amendments.

(a) Petitioner assumes erroneously that a law that imposes any burden on the right to vote must

be subject to strict scrutiny. This Court's cases have applied a more flexible standard: A court

considering a state election law challenge must weigh the character and magnitude of the

asserted injury to the First and Fourteenth Amendment rights that the plaintiff seeks to vindicate

against the precise interests put forward by the State as justification for the burden imposed by its

rule, taking into consideration the extent to which those interests make it necessary to burden the

plaintiff's rights. Anderson v. Celebrezze, 460 U.S. 780, 788-789. Under this standard, a

regulation must be narrowly drawn to advance a state interest of compelling importance only

when it subjects the voters' rights to "severe" restrictions.Norman v. Reed, 502 U. S. ___, ___. If

it imposes only "reasonable, nondiscriminatory restrictions" upon those rights, the State's

important regulatory interests are generally sufficient to justify the

restrictions. Anderson, supra, at 788. Pp. 4-6.

(b) Hawaii's write in vote prohibition imposes a very limited burden upon voters' rights to

associate politically through the vote and to have candidates of their choice placed on the ballot.

Because the State's election laws provide easy access to the primary ballot until the cut off date

for the filing of nominating petitions, two months before the primary, any burden on the voters'

rights is borne only by those who fail to identify their candidate of choice until shortly before the

primary. An interest in making a late rather than an early decision is entitled to little weight.

Cf. Storer v. Brown, 415 U.S. 724, 736. Pp. 6-10.

(c) Hawaii's asserted interests in avoiding the possibility of unrestrained factionalism at the

general election and in guarding against "party raiding" during the primaries are legitimate and

are sufficient to outweigh the limited burden that the write in voting ban imposes upon voters.

Pp. 10-12.

(d) Indeed, the foregoing analysis leads to the conclusion that where, as here, a State's ballot

access laws pass constitutional muster as imposing only reasonable burdens on First and

Fourteenth Amendment rights, a write in voting prohibition will be presumptively valid, since

any burden on the right to vote for the candidate of one's choice will be light and normally will

be counterbalanced by the very state interests supporting the ballot access scheme. Pp. 12-13.

937 F. 2d 415, affirmed.

Justice White, delivered the opinion of the Court.

The issue in this case is whether Hawaii's prohibition on write-in voting unreasonably infringes

upon its citizens' rights under the First and Fourteenth Amendments. Petitioner contends that the

Constitution requires Hawaii to provide for the casting, tabulation, and publication of write-in

votes. The Court of Appeals for the Ninth Circuit disagreed, holding that the prohibition, taken

as part of the State's comprehensive election scheme, does not impermissibly burden the right to

vote. 937 F. 2d 415, 422 (1991). We affirm.

I.

Petitioner is a registered voter in the city and county of Honolulu. In 1986, only one candidate

filed nominating papers to run for the seat representing petitioner's district in the Hawaii House

of Representatives. Petitioner wrote to state officials inquiring about Hawaii's write-in voting

policy and received a copy of an opinion letter issued by the Hawaii Attorney General's Office

stating that the State's election law made no provision for write-in voting. 1 App. 38-39, 49.

Petitioner then filed this lawsuit, claiming that he wished to vote in the primary and general

elections for a person who had not filed nominating papers and that he wished to vote in future

elections for other persons whose names might not appear on the ballot. Id., at 32-33. The United

States District Court for the District of Hawaii concluded that the ban on write-in voting violated

petitioner's First Amendment right of expression and association and entered a preliminary

injunction ordering respondents to provide for the casting and tallying of write-in votes in the

November 1986 general election. App. to Pet. for Cert. 67a77a. The District Court denied a

stay pending appeal. 1 App. 76-107.

The Court of Appeals entered the stay, id., at 109, and vacated the judgment of the District

Court, reasoning that consideration of the federal constitutional question raised by petitioner was

premature because "neither the plain language of Hawaii statutes nor any definitive judicial

interpretation of those statutes establishes that the Hawaii legislature has enacted a ban on write-

in voting," Burdick v. Takushi, 846 F. 2d 587, 588 (CA9 1988). Accordingly, the Court of

Appeals ordered the District Court to abstain, see Railroad Comm'n of Texas v. Pullman

Co., 312 U. S. 496 (1941), until state courts had determined whether Hawaii's election laws

permitted write-in voting.

On remand, the District Court certified the following three questions to the Supreme Court of

Hawaii:

"(1) Does the Constitution of the State of Hawaii require Hawaii's election officials to permit the

casting of write-in votes and require Hawaii's election officials to count and publish write-in

votes? "(2) Do Hawaii's election laws require Hawaii's election officials to permit the casting of

write-in votes and require Hawaii's election officials to count and publish write-in votes?

"(3) Do Hawaii's election laws permit, but not require, Hawaii's election officials to allow voters

to cast writein votes and to count and publish write-in votes?" App. to Pet. for Cert. 56a57a.

Hawaii's high court answered "No" to all three questions, holding that Hawaii's election laws

barred write-in voting and that these measures were consistent with the State's

Constitution. Burdick v. Takushi, 70 Haw. 498, 776 P. 2d 824