Hudler v. Austin

¶1(dissenting).

¶2I respectfully dissent from the majority decision holding that Act 94 is not constitutionally infirm. I concur with the majority decision that Act 94 as applied to the 1976 general election is violative of plaintiffs’ due process rights. I would hold that Act 94 is constitutionally invalid for these reasons:

¶3According to the testimony of Bernard Apol, Michigan’s Director of Elections and a participant in the drafting of Public Act 94, the new law was adopted because it became evident that more than nine political parties would qualify for ballot positions in the November 1976 general election under existing election laws. Michigan makes extensive use of voting machines of a type that cannot accommodate more than nine parties so long as the option of straight party ticket voting is provided. Since the straight party ticket option is statutorily mandated, the state would have to employ punch cards or paper ballots in the event that more than nine parties qualified for ballot positions. According to Apol, many legislators believed that Act 94 would restrict the number of qualifying parties to less than nine; Apol stated that the Act was adopted for the obvious purpose of keeping minor parties off the ballot.

¶4In addition to the pre-existing petition requirement, Act 94 requires that:

To qualify to have its ñame, party vignette, and candidates appear on the general election ballot a party whose party name only appears on the primary ballot shall receive a vote total of more than Vio of 1% of the total number of voters appearing at that primary election as shown by the poll books.

¶5M.C.L.A. § 168.560b(4) (Supp.1976).

¶6New of the voters appearing at the primary election are likely to vote to place a new party on the general election ballot, however, for the Act also provides:

A voter shall be entitled to vote for candidates of 1 political party only, or to indicate a desire that 1 party and its candidates appear on the general election ballot.

¶7M.C.L.A. § 168.560b(3) (emphasis added). According to the testimony of Dr. Donald Warren, an expert in political sociology, the mutually exclusive choice presented to primary voters will have the effect — given the traditional role of a primary — of making the voters more likely to choose a candidate of a major party than to vote to place a new party on the ballot. The pool of potential new party supporters is thus likely to be a relatively small portion of the primary turnout. For this and other reasons plaintiffs challenge Act 94 as an unduly burdensome restriction on their access to the ballot.

¶8While research does not disclose that an electoral restriction of the kind imposed by Public Act 94 has ever before been judicially tested, the general principles of law that should govern the court’s decision are clear. As the Supreme Court recently stated:

In several situations concerning the electoral process, the principle has been developed that restrictions on access to the electoral process must survive exacting scrutiny. The restriction can be sustained only if it furthers a “vital” governmental interest, American Party of Texas v. White, 415 U.S. 767, 780-781 [94 S.Ct. 1296, 1305-1306, 39 L.Ed.2d 744] (1974), that is “achieved by a means that does not unfairly or unnecessarily burden either a minority party’s or an individual candidate’s equally important interest in the continued availability of political opportunity.” Lubin v. Panish, 415 U.S. 709, 716 [94 S.Ct. 1315,1320, 39 L.Ed. 702] (1974). See American Party of Texas v. White, supra[415 U.S.] at 780 [94 S.Ct. 1296 at 1305] (1974); Storer v. Brown, 415 U.S. 724, 729-730 [94 S.Ct. 1274, 1278-1279, 39 L.Ed.2d 714] (1974).

¶9Buckley v. Valeo (1976), 424 U.S. 1, at 92-94, 96 S.Ct. 612, at 670, 46 L.Ed.2d 659. *1017Under the strict scrutiny standard of review that must be applied to statutes restricting access to the ballot, the state has the burden of establishing the necessity of the restriction. Bullock v. Carter, 405 U.S. 134, 147, 92 S.Ct. 849, 858, 31 L.Ed.2d 92 (1972) (“there must be a showing of necessity”). (emphasis supplied). As stated in Dunn v. Blumstein, 405 U.S. 330, 343, 92 S.Ct. 995, 1003, 31 L.Ed.2d 274 (1972):

[T]he State cannot choose means that unnecessarily burden or restrict constitutionally protected activity. Statutes affecting constitutional rights must be drawn with “precision,” NACCP v. Button, 371 U.S. 415, 438 [83 S.Ct. 328, 340, 9 L.Ed.2d 405] (1963); United States v. Robel, 389 U.S. 258,265 [88 S.Ct. 419,424,19 L.Ed.2d 508] (1967), and must be “tailored” to serve their legitimate objectives. Shapiro v. Thompson, supra[394 U.S. 618], at 631 [89 S.Ct. 1332, at 1329, 22 L.Ed.2d 600]. And if there are other, reasonable ways to achieve those goals with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference. If it acts at all, it must choose “less drastic means.” Shelton v. Tucker, 364 U.S. 479, 488 [81 S.Ct. 247, 252, 5 L.Ed.2d 231] (1960).

¶10The issues for decision are, first, whether the state has shown a vital governmental interest that is served by Act 94, and second, whether the state has shown that Act 94 is necessary to serve that interest in the sense that no less drastic means are available. As to the vital governmental interest, the state asserts that its purpose was to require new and minority political parties seeking ballot status to demonstrate a modicum of community support. While this is, of course, a well-established and legitimate function of state election laws, it smacks somewhat of post hoc rationalization in view of Apol’s explicit testimony as to the immediate evil that Act 94 was designed to remedy, namely, the prospect that more parties would qualify than would fit on the voting machines. The state recognizes that the petition method is used in over 30 states to measure community support, that Michigan employed the petition method prior to Act 94, and, indeed, that Michigan has retained the petition requirement even after Act 94. Yet the assertion is made that “experience over time has revealed that at least in Michigan the petition method is an extremely imprecise method for measuring community support.” Post-Trial Brief of Defendants, dated July 8, 1976, at 7. Assuming that “community support” means potential votes in the general election rather than support for giving the party a place on the ballot, there is indeed evidence in this record for the state’s assertion. However, there is no evidence that this was a concern of the legislature in adopting Act 94, or even that the inefficacy of the petition method as a measure of community support was brought to their attention. If this had been one of their concerns, it is difficult to imagine a reason for retaining the petition method in addition to the primary method. If, as the state asserts, the petition method is “extremely imprecise,” its continued use would seem to lack even a rational basis.

¶11The state contends, nonetheless, that the legislature’s actual purpose is irrelevant, stating:

Although the Michigan legislature may have enacted Act 94 in response to the very real possibility that more than nine political parties would appear on the November 1976 general election ballot thereby preventing the use of voting machines, the motivation of the legislature cannot be utilized in determining the constitutionality of Act 94.

¶12Post-Trial Brief of Defendants at 9. (emphasis added). I have difficulty with the proposition that the avowed purpose of the legislature may be ignored in the judicial review of its enactments. Where important constitutional rights are at stake, especially the rights of political parties whose interest in obtaining access to the ballot is in direct conflict with the interests of the major party legislators in remaining in office, it seems appropriate that the motives of the *1018legislature as well as the effects of the legislation should be strictly scrutinized.*

¶13Even assuming, however, that the “vital governmental interest” behind Act 94 is the need to supplement the inadequate petition method with á process that more accurately measures the prospects of minority parties for success in the general election, the state has failed to carry its burden of showing that the primary method is necessary. Indeed, on this record it is not even established that the primary method, either alone or in conjunction with the petition method, will be any more effective than the petition method in measuring “community support.” When asked whether Act 94 is a fair test of new party support, Dr. Warren answered in the negative, stating that primaries do not indicate party strength. Dr. Warren Miller, a Professor of Political Science at the University of Michigan with particular expertise in voting behavior, stated that the primary would have no predictive value as to the party’s showing in the general election. In fact, Dr. Miller went so far as to state that there is no valid way of using a primary to demonstrate a modicum of community support. It is true, as the majority points out, that no procedure similar to that of Act 94 has been subjected to scholarly analysis. This fact certainly reflects upon the weight to which the experts’ opinions are entitled. However, persons who have devoted their professional careers to the study of elections and voting behavior have valuable expertise that may shed light on the effect that a new procedure will have in practice, even if it has never before been tried. More important, the state has produced no evidence that the primary will achieve its purported ends. Even if we were to discount the expert testimony in its entirety, the state has failed to discharge its burden of showing that the primary requirement imposed by Act 94 is even effective, not to mention necessary.

¶14Looking, on the other hand, to the true purpose of Act 94 — namely, to preserve the use of the state’s voting machines — it is clear that less drastic means are available. It is the testimony of Mr. Apol that the voting machines’ capacity is limited to nine parties only if the straight party ticket option is provided. The legislature might, therefore, have achieved its purpose simply by deleting the statutory requirement for the straight party ticket option. While the voters of the state may have some slight interest in the convenience of voting for all the candidates of one party by pulling a single lever, this interest is de minimus as weighed against the rights of plaintiffs in access to the ballot. Moreover, the testimony of Dr. Miller suggests that more than half of the present Michigan electorate is independent, i. e., does not identify with either major party. This fact tends to minimize even further the interest of the state in the straight party ticket option — it may be assumed that the trend toward independent voting means an increase in ticket splitting. Finally, the elimination of the straight party ticket option would further the purpose of encouraging the electorate to exercise more discrimination in their use of the franchise.

¶15History reveals numerous instances in which legislative restrictions have been enacted to curtail the right to vote for candidates or parties. Often these restrictions have been directed at political parties or candidates' who advocate unpopular posi*1019tions or indeed simply exercise the right to dissent. Frequently, reasons for such actions are given which seem superficially sound.

¶16It is because of this that our rules of law place a heavy burden on the state to justify its actions when it legislates restrictions on voting rights. This burden should never be shifted by the judiciary.

¶17For these reasons, I find that the state has failed to carry its burden of justifying Act 94.