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OLR Research Report


February 3, 2003

 

2003-R-0171

PRIMARY ELECTION RULING IN U.S. DISTRICT COURT

By: Mary M. Janicki, Assistant Director

You asked for a summary of Judge Peter C. Dorsey's January 29, 2003 ruling in Campbell v. Bysiewicz, the case on the state's primary election system.

SUMMARY

Before the November 2002 election, plaintiffs alleged in U.S. District Court that the state's primary election law that requires candidates for state and district offices to get at least 15% of the votes at a political party's nominating convention in order to run in a primary is unconstitutional. Last summer, Judge Peter Dorsey granted a preliminary injunction on enforcing the law due to the likelihood that plaintiffs would succeed on their claim that the law violates their right of association. Secretary of the State Susan Bysiewicz filed an appeal to the U.S. Court of Appeals for the Second Circuit, which ordered the 2002 primary elections to be held under the current, challenged law. In order to have the case decided on its merits, the parties went back to trial before Judge Dorsey, who issued the January 29, 2003 ruling.

His decision declares unconstitutional the state's so-called “challenge primary law,” the major political party rules corresponding to the 15% rule, and the residency requirement for petition circulators. The ruling also prohibits their enforcement.

The court concluded that the requirement that prospective candidates for a state or district office receive support of 15% of a nominating convention's delegates is unconstitutionally burdensome. The state's interest in regulating elections is not outweighed by unreasonable or discriminatory restrictions on a candidate's right to appear on the ballot or party members' right to choose from among various candidates. In addition, the party rules that correspond to the 15% requirement are unconstitutional. Political parties conducting their primaries based on statutory authority are state actors and, as such, are not permitted to adopt rules found to be unconstitutional.

Finally, the court found unconstitutional the state's requirement that a person getting signatures on a nominating petition must live in the district where the petitioning candidate is running for office. The judge ruled that such a restriction on petition circulators inhibits communications among voters, reduces the number of people available to circulate petitions, and is not justified by any legitimate state interests.

Attorney General Blumenthal has announced that the state will not appeal the district court decision.

FACTS OF THE CASE

Plaintiffs are seven people and two corporations. Three of the plaintiffs in the case were candidates for nominations of the Democratic and Republican political parties to district offices in the November 2002 state election (Jim Campbell, Pamela Byrnes, Ed Gomes, Common Cause of Connecticut, Connecticut Citizens Action Group, Mark Nielsen, Gordon Haave, Thomas J. Cullen, John Fixary and Jonathan Waters Wilcox, plaintiffs v. Susan Bysiewicz, Secretary of the State of Connecticut, Democratic Party of Connecticut and the Republican Party of Connecticut, defendants, Civ. No. 3:02CV00488 (PCD), January 29, 2003). They brought an action under 42 USC 1983 (civil rights) alleging that three state election laws (CGS 9-400 (requirements for primary candidates for state or district office), 9-410(c) (circulation of petitions for municipal office), and 9-416 (primary rules) are unconstitutional.

The secretary of the state was named as defendant in her capacity as the state's administrator of election law, including the process for designating a party's nominees. After an appeal of the court's preliminary injunction, the two major parties joined as defendants.

Plaintiffs sought an injunction against the primary law's requirement that a candidate receive the support of at least 15% of the delegates at a convention where the party nominates its candidates (known as the 15% rule) and the party rules that include the 15% provision. They argued that the so-called “challenge primary” system (1) places an undue burden on candidates seeking access to the ballot for state and district office, (2) gives voters in multi-town districts less ability to participate in their political party's nomination process than voters in single-town districts (where candidates who submit petitions signed by at least 5% of the enrolled party members in the district can run in a primary), and (3) places an undue limitation on the number of people available to circulate signature petitions.

PROCEDURAL HISTORY

On July 23, 2002, Judge Peter Dorsey ruled in U.S. District Court for the District of Connecticut on the plaintiff's motion for preliminary injunction. The judge stated: “plaintiffs have shown a substantial likelihood of success on the merits that the three election statutes are unconstitutional” (213 F.Supp.2d 152, 154). He enjoined the secretary of the state from enforcing the three statutes in question, but he declined to compel her to put the plaintiffs' names on their respective primary ballots if they submitted petitions signed by 5% of enrolled party members in the district (the requirement for getting on a primary ballot for a single-town or municipal office).

On August 5, Judge Dorsey modified his initial order and ordered Secretary Bysiewicz to put any qualified applicant on the primary ballot. In addition, he denied the secretary's motion for a stay of his initial order.

On August 9, the U.S. Court of Appeals for the Second Circuit unanimously granted the secretary's motion for a stay and ordered the 2002 primary elections to proceed according to existing state law. The appeals court ruled that Judge Dorsey could not modify his earlier order and that, because the political parties were not party to the litigation, the district court's ruling placed too great a hardship on the secretary.

The case was scheduled for trial with the request that the two major parties participate. The ruling in that phase of the case, ordered on January 29, 2003, is the subject of this report.

HOLDING

The court granted the plaintiffs' request for summary judgment. It declared unconstitutional:

1. the state's challenge primary law and the Democratic and Republican party rules (requiring 15% of convention delegate support to force a primary) and

2. the law requiring nominating petition circulators to be a resident of the jurisdiction covered by the office for which the candidacy is being filed.

Judge Dorsey prohibited enforcement of those sections of the statutes (CGS 9-400, 9-410, and 9-416) and the corresponding party rules.

REASONING OF THE COURT

Challenge Primary Law (CGS 9-400 and 9-416)

Though the defendants argued they had a right to regulate the election process to provide order and avoid confusion and could determine the regulation method, the court found the 15% delegate requirement unduly burdensome on the associational rights of individuals to put their names on a primary ballot and of voters to choices among various candidates. Restrictions on primary candidates must be limited to those narrowly tailored to achieve the state's right to regulate elections.

The court's analysis of the impact of the 15% rule on primaries for state and district offices conducted since the law's enactment in 1955 and its comparison with primaries held in districts with the 5% signature requirement showed “substantial impairment of the ability of prospective candidates to place themselves and their ideas before the voters for consideration” (unpublished). It found the state's interest in screening out candidates with minimal support is achieved through the 5% rule.

The additional steps [that would-be candidates for state or district office must take] appear to be unnecessary, unwarranted, and unreasonably limiting access to the primary ballot particularly as compared to the 5% rule.

Under Judge Dorsey's ruling, the 15% provision is an exclusionary restriction on primary candidates that is not reasonably necessary nor is it the least drastic means to achieve the state's interest in regulating elections; therefore it is unconstitutional.

Political Party Rules

The court also considered the extent to which the defendant political parties can exercise their right of association. It found that the party's right to association may not unduly burden its members' rights to association. It cannot by rule dilute their rights by establishing qualifications for ballot access in a primary that are so unreasonable as to make meaningless a member's right to be considered for nomination or a member's right to choose a nominee who can show a modicum of support.

The judge also ruled “when the state prescribes an election process in which parties are assigned a special role, parties' action becomes state action and is subject to Constitutional standards.” The First Amendment becomes enforceable against state action through the Fourteenth Amendment. A private entity such as a political party becomes a state actor “if it is endowed with powers under state law to act 'under color of state law'.” Party action affecting primary elections under statutory authority constitutes state action. After finding that “where the party, as authorized by state statute, becomes a state actor thereby, its rules are subject to the same Constitutional limitations as are state statutes,” the court concluded as it did for the statutes that the corresponding rules of the Democratic and Republican parties are unconstitutional.

Residency Requirement, CGS 9-410

The court found the residency requirement for petition circulators to be an unjustifiable restriction. Under state law, petition circulators must be “entitled to vote in the primary for which such candidacy is being filed;” that is, they must be enrolled in the same political party and live in the jurisdiction. Relying on rulings in other cases (Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999) and Lerman v. Board of Elections, 232 F.3d 135 (2d Cir. 2000)), the court determined that such restrictions have no bearing on state interests but conflict with the right to political exchanges and unduly burden an essential element of the voting process.

When restrictions significantly inhibit communication with voters and are not justified by legitimate state interests, such as prevention of fraud and corruption, they will not withstand constitutional scrutiny. Restrictions which drastically reduce the persons available to circulate petitions, thereby diminishing protected speech and information to which voters are entitled, and which do not sufficiently serve the state's interests, would not be justified and therefore would be unconstitutional.

MJ:ts