United Citizens Party v. South Carolina State Election Commission , 319 F. Supp. 784 ( 1970 )

CRAVEN, Circuit Judge:

This action was brought by plaintiffs, United Citizens Party of South Carolina and John Roy Harper, II, president of the United Citizens Party of South Carolina, for a declaratory judgment that Section 23-264 of the Code of Laws of South Carolina is unconstitutional on its face and as applied to the plaintiffs and for injunctive relief requiring the defendants to place the names of the United Citizens Party’s candidates for governor and lieutenant governor on the ballot for the general election on November 3.

According to the testimony of plaintiff John Roy Harper, II, the United Citizens Party was begun in the latter part of 1968 as the result of the feeling of a number of citizens of South Carolina that neither of the major political parties truly represented the interests of the black citizens of South Carolina. Determining to create an independent political party, Mr. Harper and others undertook a petition campaign to obtain the signatures of 10,000 registered voters required for certification of a political party by Section 23-251 of the Code of Laws of South Carolina. On May 22, 1970, 11,048 signatures on petitions requesting the certification of the United Citizens Party of South Carolina were submitted to the South Carolina Secretary of State.

A month to six weeks later, the Secretary of State’s office notified the United Citizens Party that a random comparison of the names on the petitions with the rolls of registered voters ‘indicated that 13 percent of the signatures were not those of registered voters. After negotiations with the United Citizens Party and another two weeks of checking the rolls, the Secretary of State’s office reduced their determination of the number of unqualified signatures to 11 percent, which meant that the United Citizens Party was a few hundred signatures short of the required 10,000. On August 24, 1970, petitions containing an additional 700 signatures were submitted to the Secretary of State. The party was finally certified by the South Carolina Secretary of State on September 1, 1970.

The United Citizens Party convened in state convention on the evening of September 1, 1970. The state convention decided to nominate candidates for only two of the state’s constitutional offices. Tom Broadwater was chosen as the party’s nominee for governor and J. C. McTeer was chosen as the nominee for lieutenant governor. In a letter to the South Carolina Secretary of State, the president of the party, John Roy Harper, II, requested that the names of the party’s nominees be placed on the ballot for the November 3, 1970, general election.

The response to the letter addressed to the South Carolina Secretary of State came from the State Election Commission, which commission was substituted in authority for the Secretary of State by an act of the legislature in 1968. The letter from the Election Commission, dated September 4, 1970, advised the United Citizens Party as follows:

Section 23-264 of the 1962 South Carolina Code of Laws provides in part as follows:

“ * * * Provided, that any political party nominating candidates by party convention shall nominate the party candidates and make the nominations public not later than the date and time fixed for the closing of primary entries * * *. ”

The only political party in South Carolina to hold a primary election to nominate candidates for statewide offices to be voted on in the November 3, 1970, General Election was the Democratic Party of South Carolina. Section 23-396 of the 1962 South Carolina Code of Laws requires that political parties nominating candidates for statewide offices in a primary election must close the filing time for candidates at two weeks after the day after the State convention convenes. The Democratic State Convention convened on March 25, 1970 and the filing deadline for candidates for statewide offices to be nominated in the primary closed on noon April 9, 1970.

Therefore, in view of the requirements of Section 23-264 set out above, any candidate nominated by way of convention must have been nominated and his name made public not later than noon April 9,1970.

Plaintiffs filed the complaint in this action on October 20, 1970, requesting a declaratory judgment that Section 23-264 is in violation of the Constitution of the United States and an injunction requiring the defendants to place the names of the United Citizens Party’s candidates on the ballot for the November 3, 1970, general election. Plaintiffs contend that Section 23-264 is unconstitutional in two aspects. First, it is urged that it is an unconstitutional delegation of power by the South Carolina Legislature to the established private political parties of South Carolina to fix the specific deadline by which the candidates must be nominated and announced. Secondly, it is urged that the requirement that the candidates entitled to a position on the ballot be nominated and announced some seven months prior to the general election discriminates against the plaintiffs in violation of rights guaranteed by the First and Fourteenth Amendments and is not justified by a compelling state interest.

Before dealing with the constitutional arguments raised by the plaintiffs, we are compelled to deal with questions of interpretation of the statutory election laws of South Carolina. While we cannot interpret questions of South Carolina law with finality, it is our duty to make the attempt when there is no interpretation by the highest state court. Roginsky v. Richardson-Merrell, Inc., 2 Cir., 378 F.2d 832, 851 (1967). If there were time, we might well abstain pending a determination of the state law questions by the state courts. Harman v. Forssenius, 380 U.S. 528, 534, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965). But the election is only a few days off. Any delay would render moot whatever limited relief remains possible.

I.

IS THE UNITED CITIZENS PARTY OF SOUTH CAROLINA A PROPERLY CERTIFIED PARTY?

In their answer, defendants urge as a defense that the United Citizens Party of South Carolina has not been duly certified as a political party under the requirements of the election laws of South Carolina and that, accordingly, the party is not entitled to have the names of its candidates placed on the ballot.

Prior to a 1968 revision of the South Carolina election laws, the responsibility for conduct of elections in South Carolina was placed in the office of the South Carolina Secretary of State. Section 23-251 of the South Carolina election laws provided for certification of new political parties by the Secretary of State upon the filing of petitions requesting certification containing the signatures of 10,000 registered voters. The election laws of South Carolina were revised during the 1968 session of the legislature to become effective January 1, 1969. This revision created a new agency, the State Election Commission, and transferred to it most of the duties formerly imposed on the Secretary of State with regard to elections. The revision did not specifically amend Section 23-251 which provided for certification of political parties by the Secretary of State, however.

Defendants suggest that the 1968 revision must be interpreted to have amended Section 23-251 by implication. They refer our attention to a revision of another section of the election laws in which the State Election Commission was substituted for the Secretary of State, codified as Section 23-400.15 after the 1968 revision, which now refers to “political party, certified as such by the State Election Commission.” The defendants argue from this that since the United Citizens Party received their certification from the Secretary of State and not the State Election Commission, that certification is void.

We reject the argument. When the United Citizens Party submitted its first set of petitions in May to the Secretary of State, no suggestion was made by either the Secretary of State or the State Election Commission that the petitions must go to the State Election Commission. A random comparison of the names on the petitions with the county voter lists was conducted by the Secretary of State’s office over a period of approximately two months. When the Secretary of State’s office finally notified the plaintiffs that 11 percent of the signatures would not be accepted there was apparently no suggestion that the petitions should be submitted to the State Election Commission. When the Secretary of State sent the official certification to the United Citizens Party on September 1, 1970, there was no suggestion that the Secretary of State was no longer entitled to certify parties. Moreover, when the plaintiffs two days later mailed a letter to the Secretary of State requesting that the names of its candidates be put on the ballot, the reply came from the State Election Commission and not the Secretary of State. There was no suggestion in this letter that the United Citizens Party was not duly certified.

We conclude that the lengthy certification process conducted by the Secretary of State was likely done with the knowledge and consent of the State Election Commission and that neither agency then interpreted the 1968 revision to transfer the certification responsibilities to the State Election Commission. During this interim period after the statutory change the activity and responsibility of the two agencies apparently coalesced. Moreover, we think reliance of the United Citizens Party on official state action estops the state to now belatedly urge what is at most a highly debatable interpretation of the statutes not at all compelled by the language.

II.

IS SECTION 23-264 OF THE ELECTION LAWS OF SOUTH CAROLINA UNCONSTITUTIONAL AS AN INVALID DELEGATION OF LEGISLATIVE AUTHORITY TO POLITICAL PARTIES?

It is a black letter rule now so firmly fixed that it is found in legal encyclopedias that a legislature may not delegate legislative functions to private persons or associations. 16 Am.Jur.2d “Constitutional Law” § 249. The Supreme Court of South Carolina has recognized this principle and adopted it as the law of South Carolina in Ashmore v. Greater Greenville Sewer District, 211 S.C. 77, 44 S.E.2d 88 (1947). It was there held that legislative delegation to persons, groups or organizations unrelated to official government of power to nominate, appoint, or elect public officers is unconstitutional as an invalid delegation of legislative power and as a violation of equal protection of the laws and due process of law clauses of the state Constitution of South Carolina. The South Carolina Supreme Court qualified its decision to make a possible exception of a situation where the unofficial persons or bodies may be said to have a rational and substantial relation to the law to be administered. Although not deciding the question, the South Carolina Supreme Court suggested, by way of illustration, that delegation of legislative power to appoint the Board of Visitors of the Citadel to the extent of permitting two members to be elected by alumni might be constitutional because of the interest and knowledge of alumni in the affairs of the institution.

We think from the statement of the rule and the choice of illustration of a close case it is clear that the South Carolina Supreme Court, if faced with the problem, would adhere to the black letter rule rather than the exception in the context of this case. It is one thing to permit participation by alumni in the affairs of a state institution and quite another, we think, to permit one political party to dominate and control and wholly determine when other political parties must offer their candidates for office. It is our duty to apply the federal Constitution, and in so doing we are not bound by decisions of state courts, but we are strengthened in our belief that Section 23-264 is an unconstitutional delegation of power by the parallel opinion of the South Carolina Supreme Court in the interpretation of its own similar state constitution.

In Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160 (1935), the United States Supreme Court invalidated the Bituminous Coal Act on the ground of an unconstitutional delegation of congressional power to private interests. The statute under consideration purported to delegate the power to fix maximum hours of labor to a part of the producers of coal and to the miners. The Court said that this is legislative delegation in its most obnoxious form, noting that private interests may be and often are adverse to the interests of others in the same business. The same is true, we think, with respect to different political parties. The Court said:

[I]n the very nature of things, one person may not be entrusted with the power to regulate the business of another, and especially of a competitor. And a statute which attempts to confer such power undertakes an intolerable and unconstitutional interference with personal liberty and private property. The delegation is so clearly arbitrary, and so clearly a denial of rights safeguarded by the due process clause of the Fifth Amendment, that it is unnecessary to do more than refer to decisions of this court which foreclose the question.

South Carolina laws Section 23-262 provides that a political party's state convention must take place in March after ten days’ notice. There is no requirement that the notice be given in March, so the convention may be held any time between March 1 and March 31. Section 23-396 provides that if a party decides to choose its candidates for office by primary, the time for submitting names for the primary begins at noon the day following the convention and continues for the next two weeks. Section 23-264 sets the date for submitting names for the ballot by parties choosing their candidates at the state convention at 60 days prior to the election except that the names must be submitted no later than the date for the closing of primary entries. Therefore, a political party having a primary can control the date of submission of candidates by parties having no primary by their control over the date of their state convention. If the Democratic Party decides to have a primary and holds their state convention on March 31, the closing date for submission of names is April 14. If the Democratic Party holds its convention on March 1, the closing date for submission of names is March 15. If, however, the Republican Party subsequently broke with tradition and decided to have a primary at a state convention held on March 31, the date for filing names for a third party would be moved back to April 14.

But the potential delegation problem is much greater. Consider what would happen if the Democratic Party broke with tradition and decided not to have a primary. The proviso is based on the closing date for filing of primary entries and if no party is having a! primary, the provison is inoperative. Removing the proviso leaves the 60-day-prior-to-election closing date in Section 23-264 (which apparently has been reduced to 35 days by Section 23-400.15). Section 23-264 also provides that the requirement that a party hold its convention in March applies only to parties deciding to have a primary. A party not having a primary can hold its state convention at any time after three weeks’ notice. The only practical time limit on the date of holding a convention is the need to hold the convention early enough to select and then submit the names of the party’s candidate within the 60-day time limit in Section 23-264 (or 35 days if that is the effect of Section 23-400.15).

Thus it is clear that the sine qua non of the plaintiffs’ failure to meet the statutory time limit for submitting the names of its candidates was the Democratic Party’s decision not to break with tradition and to hold a primary in 1970. The plaintiffs filed the names of its nominees 61 days prior to the election. The Democratic Party’s decision to hold a primary changed the cut-off date from a potential of 60 days (or 35 days) to seven months prior to the election. The full effect of the delegation problem is exposed by the facts of this case.

We hold that Section 23-264 is unconstitutional as in violation of the due process clause of the Fourteenth Amendment and as in violation of the right of the people peaceably to assemble and petition the government for redress of grievances, guaranteed by the First Amendment and applied to the states by the Fourteenth Amendment.

Because of our belief that we should file this opinion prior to the general election, we are unable to reach and determine another substantial question that arises on the record. It is suggested that any statutory regulation of elections, without regard to unlawful delegation, that may result in the exclusion of candidates unless they announce for public office as long as seven months before the election is to be held effectively violates the First Amendment and the equal protection clause of the Fourteenth Amendment because it is arbitrary and capricious and calculated to hinder persons from offering for public office, and that there is obviously no compelling state interest to support such a requirement. Despite whatever merit there may be in such a contention, we feel foreclosed by time limitation to give the question the careful consideration it deserves, and express no opinion upon it.

III.

AVAILABILITY OF REMEDY

The defendants urge that due to the laches of the plaintiffs in waiting until October 20, 1970, to file this lawsuit, they are entitled to no relief, and argue that Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968), compels this result. We disagree.

In Williams v. Rhodes, Mr. Justice Stewart granted relief to the American Independent Party, but a few days later denied relief to the Socialist Labor Party. The Williams majority opinion states that the reason relief was denied to the Socialist Labor Party was that at the hearing on the party’s motion before Mr. Justice Stewart the State of Ohio objected on the ground that it would be impossible to place the party on the ballot without disrupting the process of the election. Ohio did not make this objection at the earlier hearing on the American Independent Party’s motion for relief.

At the hearing in this case on October 26, 1970, the uncontradicted evidence showed that it was too late to reprint the 800,000 paper ballots to be used in the election of state-wide candidates at the November 3, 1970, general election. We agree with the defendants’ interpretation of Williams v. Rhodes to the extent that the lateness of bringing this action deprives the plaintiffs of the total relief to which they would otherwise be entitled, i. e., to have the state reprint the ballots with the names of the United Citizens Party candidates.

But we do not agree that Williams v. Rhodes requires the denial of all relief. In Hadnott v. Amos, 394 U.S. 358, 89 S.Ct. 1101, 22 L.Ed.2d 336 (1969), the Supreme Court was again faced with the question of granting relief shortly before a statewide election to a party which was held to be entitled to a position on the ballot. The suit was brought by the National Democratic Party of Alabama. A three-judge district court initially granted a temporary restraining order requiring the party’s candidates be put on the ballot. After a hearing on the merits, the district court dissolved the temporary injunction and upheld the state statutes in question. The party sought immediate relief in the Supreme Court and on October 14, 1968, the Court reinstated the temporary restraining order (a full month after Mr. Justice Stewart denied relief to the Socialist Labor Party in Williams v. Rhodes). Hadnott v. Amos, 393 U.S. 815, 89 S.Ct. 138, 21 L.Ed.2d 90 (1968). At the hearing on the motion, the Court inquired of counsel for Alabama of the feasibility of preparing new ballots. Counsel replied that the ballots were different for each county, that they were prepared by the probate judges of the various counties, and that he didn’t know whether new ballots could be prepared in the' remaining time, but that they would try. See Hadnott v. Amos, 393 U.S. 904, 89 S.Ct. 227, 21 L.Ed.2d 208 (1968). On the basis of this representation, the Court reinstated the temporary injunction. Reading Williams v. Rhodes together with Hadnott v. Amos, we conclude that it is appropriate for us to order whatever limited relief remains practicably possible within the short time remaining before the general election.

At the hearing held on October 26, 1970, this court inquired of the defendants what limited relief might remain possible. When asked if the voting machines used in a few South Carolina cities could be changed to contain the names of the United Citizens Party’s candidates, counsel for the defendants replied £hat they did not know if it was mechanically possible in the remaining time. We feel it appropriate to compel the defendants to try and, if it does prove mechanically impracticable, to compel them to facilitate the write-in vote privilege on the voting machines in any manner that proves feasible. When asked if gummed labels preprinted with the names of the candidates of the United Citizens Party could be used to facilitate write-in votes, counsel for the defendants urged upon us that South Carolina law requires that voters who wish to cast their vote for a “write-in” candidate must write his name on the ballot in the voter’s own handwriting, or in the handwriting of someone assisting him if he should be illiterate or partly so. Yet the official ballot itself contains these words, the significant part of which is italicized: “If you wish to vote for a candidate not on any ticket, write or place the name of such candidate. * * * ” See Section 23-400.13 of the South Carolina election laws. Assuming without deciding that the state is correct in its interpretation of this South Carolina law, we think it must temporarily yield to the constitutional right of plaintiffs, to the extent that those rights can be implemented. Accordingly, we hold that the state must permit the placing of gummed labels containing the names of the United Citizens Party’s candidates in the write-in column of the official ballot if the plaintiffs print and distribute such labels at their own expense and that these votes must be counted.

Since the time required to prepare this opinion would have made impossible the very limited relief to which we feel plaintiffs remain entitled, we have previously prepared and issued on October 28, 1970, an injunction compelling the state to grant the relief outlined above. A copy of that injunction is attached to this opinion as an appendix and made a part hereof.

To avoid any misunderstanding, we anticipate a contention that may subsequently arise. In view of the laches of plaintiffs, and since we have been able to grant partial relief, we conclude that the decision herein will not leave open to question the validity of the November 3, 1970, general election. See Maryland Citizens for a Representative General Assembly v. Governor of Maryland, 429 F.2d 606 (4th Cir. 1970).