Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. John T. Copenhaver, Jr., District Judge. C/A 2:88-0499.
Hall and Wilkinson, Circuit Judges, and Williams, Senior United States District Judge for the Western District of Virginia, sitting by designation.
WILLIAMS, Senior District Judge
Appellants, the Socialist Workers Party and five individuals, brought suit against the members of the West Virginia State Election Commission alleging that certain provisions of the state's election laws are unconstitutional. Specifically, they object to the provision that individuals who sign nominating petitions for minor party candidates thereby lose their right to vote in the primary election; the requirement that minor party candidates must file their certificates of candidacy a month before the primary and their nominating petitions the day before the primary; the requirement that a candidate who cannot afford a filing fee submit a petition a lieu of the fee separate from the nominating petition; and finally the requirement that persons who sign nominating petitions state that they "desire to vote" for the candidate named in the petition.
The district court, in a lengthy and detailed opinion, upheld all of the challenged provisions, and the plaintiffs now bring this appeal.
Challenges by third parties and independent candidates of various state regulatory schemes are no longer novel. The Supreme Court has held that voters have the right under the First and Fourteenth Amendments to cast their ballots effectively, Williams v. Rhodes, 393 U.S. 23, 30, 21 L. Ed. 2d 24, 89 S. Ct. 5 (1968) (Black, J.), and that "the right to form a party . . . means little if [it] can be kept off an election ballot and thus denied an equal opportunity to win votes." Id. at 31. The exclusion of all but major-party candidates from the ballot heavily burdens the right to vote since all voters want to be able to vote for someone who reflects their views on the issues of the day. Id.; Lubin v. Panish, 415 U.S. 709, 716, 39 L. Ed. 2d 702, 94 S. Ct. 1315 (1974). However, these general principles are not to be interpreted as an open sesame for minor parties and individuals who want to appear on the ballot with the major candidates.
The State has the undoubted right to require candidates to make a preliminary showing of substantial support in order to qualify for a place on the ballot, because it is both wasteful and confusing to encumber the ballot with the names of frivolous candidates.
Anderson v. Celebrezze, 460 U.S. 780, 788 n. 9, 75 L. Ed. 2d 547, 103 S. Ct. 1564 (1983); Jenness v. Fortson, 403 U.S. 431, 442, 29 L. Ed. 2d 554, 91 S. Ct. 1970 (1971).
Because of the wide variation in the approaches of different states to the problem of ballot access, the Supreme Court in Anderson laid down a balancing test to determine the constitutional validity of the various state schemes. 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 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. The results of this evaluation will not be automatic; as we have recognized, there is "no substitute for the hard judgments that must be made."
460 U.S. at 890-90 (citations omitted).
The district court proceeded to examine the challenged provisions of West Virginia's elections laws in light of the Anderson standard. It found that the statute, W.Va.Code § 3-5-24(c) and (d), which forces voters to choose between signing a nominating petition and voting in the primary election was proper, citing American Party of Texas v. White, 415 U.S. 767, 39 L. Ed. 2d 744, 94 S. Ct. 1296 (1974), in which the Supreme Court sustained a similar provision of the Texas election code on the grounds that there is "nothing invidious in disqualifying those who have voted at a party primary from signing petitions for another party seeking ballot position for its candidates for the same offices." Id. at 786.
Plaintiffs, however, point to a difference between the West Virginia scheme and the Texas statute upheld by the Supreme Court in White. In Texas, a third party which fails to garner enough support at its nominating convention on primary day "may make up the shortage and win ballot positions by circulating petitions for signature for a period of 55 days beginning after the primary and ending 120 days prior to the general election." Id. at 784. It is the lack of such a second chance in West Virginia which the plaintiffs see as "[imposing] a substantial, over-broad, and unnecessary burden" on their access to the ballot.
The plaintiffs complain that the lack of a post-primary makeup period for gathering signatures burdens them in two ways: first, contrary to the district court's supposition, the fact that only about 50% of the West Virginia electorate participates in the primary does not automatically mean that the other 50% will be available for signing nominating petitions because many of those people will not be willing to abandon their right to vote in the primary until the last minute, if at all. Second, the act of signing a nominating petition for a candidate in one race results in the loss of the right to vote on primary day in other races as well. This places a substantial burden on minor parties and independent candidates which is not balanced, according to the plaintiffs, by any corresponding state interest.
This argument is substantially undermined by a close look at the relevant precedents. The situation which obtained in American Party of Texas v. White is not so simple as plaintiffs suggest. There, Texas election laws provided the following system for candidates whose party polled less than two percent of the vote at the preceding election to get on the ballot: first, the party was required to hold precinct, county, and state conventions to nominate candidates and had to evidence support by persons numbering at least one percent of the total vote cast for governor at the preceding general election, by preparing a list of the qualified voters and sending it to the Secretary of State within twenty days. 415 U.S. at 777. If this were insufficient, only then would the petition process kick in. The party might gather ...