Moore v. Ogilvie/Opinion of the Court

This is a suit for declaratory relief and for an injunction, 28 U.S.C. §§ 2201, 2202, brought by appellants who are independent candidates for the offices of electors of President and Vice President of the United States from Illinois. The defendants or appellees are members of the Illinois Electoral Board. Ill.Rev.Stat. c. 46, § 7-14. In 1968 appellants filed with appellees petitions containing the names of 26,500 qualified voters who desired that appellants be nominated. The appellees ruled that appellants could not be certified to the county clerks for the November 1968 election because of a proviso added in 1935 to an Illinois statute requiring that at least 25,000 electors sign a petition to nominate such candidates. The proviso reads:

' * *  * that included in the aggregate total of 25,000      signatures are the signatures of 200 qualified voters from      each of at least 50 counties.' Ill.Rev.Stat., c. 46, § 10-3      (1967).

A three-judge District Court was convened, 28 U.S.C. §§ 2281, 2284, which, feeling bound by MacDougall v. Green, 335 U.S. 281, 69 S.Ct. 1, 93 L.Ed. 3, dismissed the complaint for failure to state a cause of action. 293 F.Supp. 411. The case is here on appeal. 28 U.S.C. § 1253.

On October 8, 1968, the same day the case was docketed, appellants filed a motion to advance and expedite the hearing and disposition of this cause. Appellees opposed the motion. On October 14, 1968, we entered the following order:

'Because of the representation of the State of Illinois that     'It would be a physical impossibility' for the State 'to      effectuate the relief which the appellants seek,' the 'Motion      to Advance and Expedite the Hearing and Disposition of this Cause' is denied. Mr. Justice     Fortas would grant the motion.' 393 U.S. 814, 89 S.Ct. 138,     21 L.Ed.2d 90.

Appellees urged in a motion to dismiss that since the November 5, 1968, election has been held, there is no possibility of granting any relief to appellants and that the appeal should be dismissed. But while the 1968 election is over, the burden which MacDougall v. Green, supra, allowed to be placed on the nomination of candidates for statewide offices remains and controls future elections, as long as Illinois maintains her present system as she has done since 1935. The problem is therefore 'capable of repetition, yet evading review,' Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310. The need for its resolution thus reflects a continuing controversy in the federalstate area where our 'one man, one vote' decisions have thrust. We turn then to the merits.

MacDougall v. Green is indistinguishable from the present controversy. The allegations in that case were that 52% of the State's registered voters were residents of Cook County alone, 87% were residents of the 49 most populous counties, and only 13% resided in the 53 least populous counties. The argument was that a nominating procedure so weighted violates the Equal Protection Clause.

Today, in contrast, 93.4% of the State's registered voters reside in the 49 most populous counties, and only 6.6% are resident in the remaining 53 counties. The constitutional argument, however, remains the same.

Five members of the Court held in MacDougall that a State has 'the power to assure a proper diffusion of political initiative as between its thinly populated counties and those having concentrated masses, in view of the fact that the latter have practical opportunities for exerting their political weight at the polls not available to the former.' 335 U.S., at 284, 69 S.Ct. at 3. Three members of the Court dissented on the ground that the nominating procedure violated the Equal Protection Clause. One member of the Court voted not to exercise this Court's jurisdiction in equity to resolve the dispute.

While the majority cited Colegrove v. Green, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432, as their authority for denying relief and while a few who took part in Colegrove put this type of question in the 'political' as distinguished from the 'justiciable' category, 328 U.S., at 552, 66 S.Ct. at 1199 that matter was authoritatively resolved in Baker v. Carr, 369 U.S. 186, 202, 82 S.Ct. 691, 702, 7 L.Ed.2d 663. When a State makes classifications of voters which favor residents of some counties over residents of other counties, a justiciable controversy is presented. 369 U.S., at 198-204, 82 S.Ct. at 699-703.

When we struck down the Georgia county-unit system in statewide primary elections, we said:

'How then can one person be given twice or 10 times the     voting power of another person in a statewide election merely      because he lives in ar ural area or because he lives in the      smallest rural county? Once the geographical unit for which a     representative is to be chosen is designated, all who      participate in the election are to have an equal vote      whatever their race, whatever their sex, whatever their      occupation, whatever their income, and wherever their home      may be in that geographical unit. This is required by the     Equal Protection Clause of the Fourteenth Amendment.' Gray v.      Sanders, 372 U.S. 368, 379, 83 S.Ct. 801, 808, 9 L.Ed.2d 821.

Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, held that a State in an apportionment of state representatives and senators among districts and counties could not deprive voters in the more populous counties of their proportionate share of representatives and senators.

'The right to vote freely for the candidate of one's choice     is of the essence of a democratic society, and any      restrictions on that right strike at the heart of      representative government. And the right of suffrage can be     denied by a debasement or dilution of the weight of a      citizen's vote just as effectively as by wholly prohibiting      the free exercise of the franchise.' 377 U.S., at 555, 84      S.Ct., at 1378.

We have said enough to indicate why MacDougall v. Green is out of line with our recent apportionment cases. The use of nominating petitions by independents to obtain a place on the Illinois ballot is an integral part of her elective system. See People ex rel. v. Board of Election Commissioners, 221 Ill. 9, 18, 77 N.W. 321, 323. All procedures used by a State as an integral part of the election process must pass muster against the charges of discrimination or of abridgment of the right to vote. United States v. Classic, 313 U.S. 299, 314-318, 61 S.Ct. 1031, 1037 1039, 85 L.Ed. 1368; Smith v. Allwright, 321 U.S. 649, 664, 64 S.Ct. 757, 765, 88 L.Ed. 897.

Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656, is not relevant to the problem of this case. There each councilman was required to be a resident of the borough from which he was elected. Like the residence requirement for state senators from a multi-district county (Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401), the place of residence did not mark the voting unit; for in Dusch all the electors in the city voted for each councilman.

It is no answer to the argument under the Equal Protection Clause that this law was designed to require statewide support for launching a new political party rather than support from a few localities. This law applies a rigid, arbitrary formula to sparsely settled counties and populous counties alike, contrary to the constitutional theme of equality among citizens in the exercise of their political rights. The idea that one group can be granted greater voting strength than another is hostile to the one man, one vote basis of our representative government.

Under this Illinois law the electorate in 49 of the counties which contain 93.4% of the registered voters may not form a new political party and place its candidates on the ballot. Yet 25,000 of the remaining 6.6% of registered voters properly distributed among the 53 remaining counties may form a new party to elect candidates to office. This law thus discriminates against the residents of the populous counties of the State in favor of rural sections. It, therefore, lacks the equality to which the exercise of political rights is entitled under the Fourteenth Amendment.

MacDougall v. Green is overruled.

Reversed.

Mr. Justice STEWART, with whom Mr. Justice HARLAN joins, dissenting.