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BACON v. HOLZMAN
February 17, 1967
WARREN BACON ET AL., PLAINTIFFS,
SIDNEY T. HOLZMAN ET AL., DEFENDANTS.
The opinion of the court was delivered by: Marovitz, District Judge.
This is a class action brought to restrain the enforcement,
operation and execution of the Illinois statutes relating to the
election of aldermanic candidates for the City of Chicago.
The plaintiffs are in two classes. One class consists of
candidates who were denied places on the ballot for the ensuing
February 28, 1967 election by the defendants, members of the
Chicago Board of Election Commissioners. Assertedly, they all
have submitted timely nomination petitions and other forms and
affidavits requisite to being placed on the ballot as candidates
for alderman in the aforesaid election. The other class consists
of certain allegedly qualified voters in Chicago who have signed
nominating petitions for certain aldermanic candidates in their
respective wards, and who would vote for said candidates, had the
latter not been ruled off the ballot by the defendants herein.
Charging that they have been denied the protections of the due
process and equal protection clauses of the Fourteenth Amendment,
plaintiffs challenge the allegedly arbitrary, capricious, and
discriminatory manner in which the names of the aforesaid
candidates were stricken from the ballot. Under the Fourteenth
Amendment, Title 28 U.S.C. § 1343, Title 42 U.S.C. § 1983, and
Title 28 U.S.C. § 2201 and 2202, they seek a preliminary
injunction enjoining defendants from printing ballots lacking the
names of the plaintiff candidates and certain other candidates,
from distributing absentee ballots without said names, and from
carrying out the election on February 28, 1967, pending a
determination of the questions raised herein. They also seek a
mandatory injunction to place the names of the plaintiff
candidates, and certain other candidates on the aldermanic
Count II, under 28 U.S.C. § 1343, and 42 U.S.C. § 1983 and
1985(3) each plaintiff further seeks a judgment of $100,000
against the defendants for the actions heretofore charged.
In a memorandum opinion rendered on February 7, 1967, this
Court denied plaintiffs' request to convene a statutory
three-judge court pursuant to 28 U.S.C. § 2281 and 2284, to hear
these proceedings. The Seventh Circuit sustained that ruling on
February 15, 1967, by denying plaintiffs' motion for a writ of
mandamus. Our decision on that motion determined that by their
petition, plaintiffs raised no substantial challenge to the
constitutionality of the disputed Election Code provisions,
Ill.Rev.Stat. c. 46, Secs. 10-4, 10-10. However, we reserved
plaintiffs' right to pursue their allegations based upon the
alleged arbitrary, capricious, and discriminatory enforcement of
the said statutes.
Hence, the major substantive issue framed by the pleadings is
this: Did the defendants deny the plaintiff candidates a place on
the ballot for the forthcoming aldermanic election by means of a
hearing procedure so arbitrary, capricious, and discriminatory as
to be lacking in the requisite protections assured by the due
process clause of the Fourteenth Amendment.
Although plaintiffs allege that defendants' actions violated
the equal protection clause of the Fourteenth Amendment, they
adduced no evidence during the course of the three day hearing
before this Court to warrant further consideration of that issue
The landmark case of Monroe v. Pape, 365 U.S. 167, 81 S.Ct.
473, 5 L.Ed.2d 492 (1961), held that it was no longer necessary
in prosecuting an action under Sec. 1983, to allege a specific
intent to deprive a person of a federal right.*fn1 But even so, we
have seen no evidence, nor have plaintiffs argued persuasively
that the equal protection clause has any application here. In his
closing statement, plaintiffs' counsel dealt almost exclusively
with the due process arguments. Accordingly, the remainder of
this decision will deal exclusively with the due process
Initially we must consider whether this Court is a proper forum
for this action.
Section 1983 of Title 42, provides:
"Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory, subjects, or causes to be subjected,
any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress."
In order to sustain the burden of establishing a proper
jurisdictional foundation under Section 1983, or Section 1343,
plaintiffs must show that the deprivation of the right to become
a candidate for alderman in the city of Chicago is a right or
privilege secured by the constitution and laws of the United
However, it has been held that the right to become a candidate
for state office is a right or privilege of state citizenship,
and not a federally guaranteed right. Snowden v. Hughes,
321 U.S. 1, 7, 64 S.Ct. 397, 88 L.Ed. 497 (1943). Snowden further affirmed
the view that "an unlawful denial by state action of a right to
state political office is not a denial of a right of property or
of liberty secured by the due process clause." 321 U.S. at 7, 64
S.Ct. at 400; Taylor & Marshall v. Beckham, 178 U.S. 548, 20
S.Ct. 890, 44 L.Ed. 1187.
The Supreme Court in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691,
7 L.Ed.2d 663 (1962), overturned the historical
notion that the federal courts could not inquire into
apportionment systems for state legislatures. It held that a
claim asserted under the Equal Protection Clause challenging the
constitutionality of state apportionment of legislative seats on
the ground that it debased and diluted the value of an individual
vote, presented a justiciable issue cognizable before the federal
courts. Since the present case under our ruling above, involves
only the due process clause, as distinguished from the equal
protection clause, the Baker case and its progeny*fn2 technically
have no application to the issue at bar. However, Baker pointed
out that in Taylor & Marshall v. Beckham, 178 U.S. 548, 20 S.Ct.
890, the Supreme Court held on the merits that defeated
candidates in the Kentucky gubernatorial race, had suffered no
deprivation of property without due process of law. And in a
footnote the Court observed:
"No holding to the contrary is to be found
in * * * Snowden v. Hughes, 321 U.S. 1, [64 S.Ct.
397, 88 L.Ed. 497]."
It appears to this Court that Snowden did not discuss the
merits of the due process issue, but concluded as a matter of law
that the right to hold state office is not a federal right, but
only a concomitant of state citizenship. The plain language of
Snowden has not been overruled. The apportionment cases do not do
so even implicitly. It is clear that Snowden did not go into the
merits of the due process allegation, even though the Supreme
Court noted in Baker that the holding in Snowden merely
reaffirmed Taylor & Marshall v. Beckham, which did go into the
substance of that issue.
Therefore in our judgment, the last clear statement of the law
on this issue is in Snowden.
Plaintiffs suggest that the recent case of Bond v. Floyd, 87
S.Ct. 339 (1966), furthers the argument that the right to hold
state office is a federal right. In that case, a duly elected
representative to the Georgia House of Representatives was
excluded from membership in that body because of his statements,
and statements to which he subscribed, criticizing the Federal
Government's policy in Viet Nam, and the operation of the
Selective Service laws. The Supreme Court held that Bond's
disqualification because of his statements, violated the free
speech provisions of the First Amendment as applied to the states
through the Fourteenth Amendment, and thereby deprived him of his
federally guaranteed right to free speech. In so holding, the
Supreme Court was not holding that Bond was deprived of his
federally guaranteed right to hold state office, but that his
state right to hold state office was being denied because of an
unconstitutional restraint upon his federal right of free speech,
perpetuated under color of state law. We submit that the Bond
case does nothing, as an explicit statement of the law, to
undercut the vitality of Snowden.
All that might be said is that the drift of recent Supreme
Court decisions seemingly could lead one to infer that sometime
in the future, the Snowden position on the status of holding
state office may be revised. As a lower court in the federal
system, we would be presumptuous to hold in opposition to the
express language of the Snowden case. Thus it is our opinion that
plaintiffs cannot state a claim under Sec. 1983 since they assert
a deprivation of a right, which under Snowden, is derived only
from their state citizenship.