Case Western Reserve Law Review Volume 20 Issue 4 Article 10 1969 Recent Decisions: Constitutional Law--Elections--Equal Protection [Williams v. Rhodes, 393 U.S. 23 (1968)] E. E. E. Follow this and additional works at: https://scholarlycommons.law.case.edu/caselrev Part of the Law Commons Recommended Citation E. E. E., Recent Decisions: Constitutional Law--Elections--Equal Protection [Williams v. Rhodes, 393 U.S. 23 (1968)], 20 Case W. Rsrv. L. Rev. 892 (1969) Available at: https://scholarlycommons.law.case.edu/caselrev/vol20/iss4/10 This Note is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. CASE WESTERN RESERVE LAW REVIEW [Vol. 20:892 CONSTITUTIONAL LAW - ELECTIONS - EQUAL PROTECTION Williams v. Rhodes, 393 U.S. 23 (1968). While traditionally two political parties have dominated Amer- ican Presidential elections, there has frequently been a third-party candidate who, although never successful, has often provided color and dignity to an otherwise overbearing ritual. A primary reason for an independent party's lack of success has been its inability to comply with the rigid requirements of diverse state election laws. Usually, state statutes permit voters to write in a party or candidate's name only if that party or candidate has fulfilled certain conditions; moreover, in order to secure a printed position on the ballot, the same party or candidate must comply with more rigid statutory requirements. The recent effort of George Wallace to qualify for a printed ballot position in all 50 states precipitated a unique Su- preme Court opinion. Ostensibly Williams v. Rhodes' dealt with the power of a state to limit access to the ballot in a Presidential election, yet the impact generated by the decision may be felt more in a state's attempt to delimit state and local candidacy. In Williams, the Ohio American Independent Party (OAIP), joined by the Socialist Labor Party (SLP),2 alleged that Ohio's elec- tion scheme effectively prohibited an independent Presidential can- didate from gaining a place on the general election ballot in viola- tion of the first and 14th amendments. Both appellants contended that the onerous conditions precedent to securing a printed ballot po- sition were violative of the equal protection clause of the 14th amendment since they forced old and new political parties to com- ply with disproportionate conditions. Specifically, the Ohio law re- quired a new political party to present a petition signed by quali- fied voters totaling 15 percent of the aggregate votes cast in the preceding gubernatorial election, while a party already positioned on the ballot was required to garner only 10 percent of the vote '393 U.S. 23 (1968). 2 While procedurally the case involved two independent third party appellants, it was essential for the Court to merge the two actions in order to secure a complete ad- judication of all basic issues. Since the Ohio American Party had obtained the required number of signatures, but had failed to file the petition before the prescribed filing date, it had standing only to challenge section 3513.263 of the Ohio Revised Code, which requires that a nominating petition be submitted 90 days before the election. However, the Socialist Labor Party, having failed to comply with either the signature or filing date requirement, had standing to raise the constitutionality of the signature re- quirement as well as the filing date requirement. 1969] PRESIDENTIAL ELECTIONS cast in the same election to preserve its position.' Conceding that the state had the constitutional authority to reasonably regulate a can- didate's placement on the ballot, the independent parties asserted that the disparate classification violated their right to associate freely for the advancement of political belief, and conclusively de- prived a qualified voter the right to effectively cast his ballot. Ohio maintained that article II section 1 of the United States Constitu- tion expressly provided the state legislature with discretion to de- termine the manner in which Presidential electors are to be selec- ted, and that if the 14th amendment did restrict the legislature's dis- cretion, the challenged statutory classification was reasonable in light of such legitimate legislative objectives as promoting the two- party system and encouraging the election of candidates by a ma- jority.4 Read literally, article II section 1 gives the states absolute discretion to decide how Presidential electors shall be chosen.5 3 OHIO REV. CODE ANN. § 3517.01 (Page 1960), which provides in part: A-political party within the meaning of Title XXXV of the Revised Code is any group of voters which, at the last preceding regular state election, polled for its candidate for governor in the state at least ten percent of the entire vote cast for governor or which filed with the secretary of state at least ninety days before an election a petition signed by qualified electors equal in num- ber to at least fifteen percent of the total vote for governor at the last preced- ing election, declaring their intention of organizing a political party, the name of which shall be stated in the declaration, and of participating in the next succeeding election. In 1966, 2,887,331 votes were cast for Ohio gubernatorial candidates. 1968 OHIO ALMANAC 281 (1967). To hedge against the possibility that some signatures might be disqualiied, the OAIP filed petitions supported by 450,000 signatures, well over the 15 percent needed. 4 393 U.S. at 31-32. Undoubtedly the exclusion of minority parties from the ballot can be justified by the fundamental policy frequently proffered by political scientists that a two-party system, in contrast to a multiparty system, is characteristic of the most sophisticated forms of political democracy, and is probably the only pattern within which democracy can effectively operate. See H. LASKI, A GRAMMER OF POLITICS 314 (2d ed. 1929); 1 A. LOWELL, THE GOVERNMENT OF ENGLAND 458 (3d ed. 1912). How- ever, the claim that new political parties would seriously jeopardize our inveterate two- party system seems particularly conjectural in light of two hundred years of Anglo- American history amply demonstrating the uncanny ability of our political system to return always to the two-party system despite complete liberty of entry for new parties. Moreover, while the British Labor Party'and the Republican Party in this country are living examples of successful third party movements, it is difficult to find any theoretical objection to such a result. Cf. 1 M. LERNER, AMERICA As A CrvILIZATION 396 (1957). The rationale offered by Ohio is also pretentious in assuming that the primary role of a minority party is to compete with the established political parties for the emolu- ments of political power. Traditionally, the role of the third party has been to engender new ideas which are assimilated and effectuated by the established political parties. W. BINKLEY, AMERIcAN POLITICAL PARTIES 81 (1943). Today this contribution is es- sential since the established parties tend to be cross-sectional with only slight deviations in platform content See generally D. TRUMAN, THE GOVERNMENTAL PROCESS 281 (1951). 5"Each State shall appoint, in such a Manner as the Legislature thereof may direct, CASE WESTERN RESERVE LAW REVIEW [Vol. 20: 892 However, both the district court and the Supreme Court conceded that this apparent unrestricted grant of constitutional power6 was limited by other provisions of the Constitution. After conceding that the Ohio election scheme violated the equal protection clause, a majority of the three-judge district courte held that both appellants were only entitled to write-in space on the forthcoming ballot since their respective parties had been guilty of laches and since the Supreme Court had failed to pronounce a suf- ficient equity standard that would empower the district court to or- der -the state to provide printed ballot space.8 Believing the view of the majority to be myopic, the dissent maintained that the prin- ciples articulated in the reapportionment and desegregation cases compelled the court, acting in equity, to expressly place 'the OAIP on the ballot. On appeal, the Supreme Court faced the basic question of whether the express grant of constitutional power contained in ar- ticle II was circumscribed by the command of the 14th amendment. In a 6-to-3 decision consisting of five separate opinions, all mem- bers of the Court agreed that the 14th amendment confined the leg- islature's discretionary power, but failed to agree as to whether Ohio's statutory scheme represented a misuse of such restricted dis- cretion. Writing for the majority,'0 Justice Black asserted that the ex- press grant of power in article II section 1 "may not be exercised in a way that violates other specific provisions of the Constitution,"" and determined that the qualified voter's interest in casting a ballot for a person of his choice is subsumed in the right to vote and in the first amendment right to association. 2 The majority opinion, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress .... " U.S. CONST. article II § 1. But see note 15 infra which suggests that the second sentence of section two of the 14th amendment provides an alternative remedy for state deprivation of voting rights. 6 An interesting anomaly is presented by the concept that an article of the Constitu- tion expressly gives the states power, particularly in light of the "reserved powers" clause in the 10th amendment.