Before Swygert, Circuit Judge, and Parsons and Decker,
The opinion of the court was delivered by: Per Curiam.
This suit was commenced on October 30, 1969. On December 5,
1969, in a memorandum opinion and order, 314 F. Supp. 677
(N.D.Ill. 1970), we determined that federal jurisdiction was
properly invoked under 28 U.S.C. § 1343, 42 U.S.C. § 1983, and
28 U.S.C. § 2201, 2202, and that a three-judge court was
properly convened pursuant to 28 U.S.C. § 2281. Because
Secretary of State Powell threatened to employ personal
favoritism or systematic bias in favor of incumbents in
breaking ties, we issued the following temporary injunction:
Allegedly in response to this injunction, defendant Powell
developed and applied a scheme of tie-breaking whereby tied
candidates with past legislative service, and incumbents, were
given preferred ballot positions. Where none of the tied
candidates had prior legislative experience, alphabetical
order was used to determine ballot priority.
According to statute, certification by the Electoral Board
of primary ballots can take place no later than January 15,
1970. Both parties urge an expeditious decision on the
constitutionality of Public Act 76-1964 in order that an
appeal may be perfected. Before turning to the statute itself,
we will examine briefly the defendants' contention that the
plaintiffs lack standing to maintain this action.
The doctrine of standing imposes jurisdictional limitations
upon the power of Federal courts to hear and decide cases. Its
essential meaning was stated in general terms by the Supreme
Court in Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952,
20 L.Ed.2d 947 (1968), as follows:
Plaintiff Bernard Weisberg is a registered voter. He intends
to vote in the March 17, 1970 primary for candidates who may
not be favored by Secretary of State Powell. We hold that
does not have a sufficient "personal stake in the outcome" of
this case, and therefore, dismiss him for lack of standing.
Although the complaint is not explicit, Weisberg seems to
maintain that his right to vote will be burdened or the
strength of his vote diluted because unconstitutional action
by the defendants will benefit candidates whom he opposes. We
have found no cases in which a cause of action for a voter was
stated on the basis of such an attenuated personal interest.
Previous cases in which voters have been allowed to challenge
statutes have involved discriminatory state action which
directly affects the significance of the plaintiff's
individual vote. Thus voters have challenged malapportioned
legislative districts, Baker v. Carr, 369 U.S. 186, 82 S.Ct.
691 (1962), gerrymandering on a racial basis, Gomillion v.
Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960),
and election laws which prevent them from voting for the
candidate of their choice, Williams v. Rhodes, 393 U.S. 23, 89
S.Ct. 5, 21 L.Ed.2d 24 (1968). By contrast in the instant
case, plaintiff merely alleges that discriminatory state
action may cause other voters to act irrationally. We think
this is an insufficient personal interest to state a cause of
action, and, although injury to candidates as a result of such
action may be severe, we will not permit this plaintiff to
maintain this action on behalf of candidates in the primary
election, cf. Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87
L.Ed. 603 (1943).
The remaining plaintiffs in this action are: Robert E. Mann,
a member of the Illinois House of Representatives, who has
filed a nominating petition for reelection; Augustus A.
Savage, who has filed a nominating petition as a candidate for
the Democratic nomination to Congress; and Saul Mendelson, who
has filed a nominating petition as a candidate for the
Democratic nomination for the Illinois Senate. The defendants
argue that these persons lack standing since they will not be
injured as a result of the defendants' action in certifying
ballots. We disagree.
The earlier Weisberg case found, and we agree, that the order
of listing candidates' names on the ballot can affect the
outcome of an election, and that candidates have a right to
equal protection in the allocation of ballot positions. The
defendants argue, however, that some of the remaining
plaintiffs will be given priority positions under the system
which Secretary of State Powell intends to employ. We do not
think the standing of a candidate to challenge the
constitutionality of Public Act 76-1964 depends upon whether he
is actually treated unfairly. If the statute permits
discriminatory treatment, then all candidates are threatened,
and these plaintiffs have a sufficient personal stake to
maintain this suit. We proceed to the merits of plaintiffs'
The Constitutionality of Public Act 76-1964
The plaintiffs urge that Public Act 76-1964 was enacted
deliberately to circumvent the decree of the Court of Appeals
in Weisberg and to continue the unconstitutional practices
condemned therein. To demonstrate this proposition they have
presented evidence including hearsay statements by the
proponents of the bill delivered on the floor of the
legislature when the statute was under consideration. As
further evidence they present "authoritative" administrative
interpretations of the Act's purpose by the Secretary of State
and by the attorney for the defendants. Finally, they call upon
us to take judicial notice of the timing of the enactment of
this statute and legislative hostility to the Weisberg decision
and thereby to attribute an invidious purpose to the statute.
We hesitate to ascribe such a clearly unconstitutional
design to the Illinois General Assembly. When considering the
constitutionality of legislation, courts should eschew
examination of legislative motives except in exceptional
circumstances, Flemming v. Nestor, 363 U.S. 603, 617, 80 S.Ct.
1367, 4 L.Ed.2d 1435 (1960); Fletcher v. Peck, 10 U.S. (6
Cranch) 87, 130, 3 L.Ed. 162 (1810). In examining a statute,
we must determine whether a permissible legislative purpose
exists. The ascertainment of purpose is objective, focusing on
the language of the statute, its operation, and upon judicial
construction of the terms of the statute. Although
determination of motive and purpose may overlap, courts should
generally defer to legislative judgments if a permissible
purpose is conceivable.
When so viewed, we find Public Act 76-1964 to be
constitutional. To establish a system by which ballot
positions are allocated is certainly a permissible legislative
purpose. We need not inquire whether this was the actual or
overriding purpose present in the minds of most legislators.
Although the system adopted in this statute may be far from
optimal, it is rationally connected to the purpose and does
not compel Secretary of State Powell to administer the statute
in a discriminatory fashion.
Cases in which courts appear to have considered legislative
motive do not undermine this conclusion but merely demonstrate
that limits exist to judicial deference in the ascertainment
of legislative purpose. Thus when racial discrimination
prompts legislatures to enact laws which, while innocuous on
their face, are intended to create de facto racial
classifications, Gomillion v. Light-foot, 364 U.S. 339, 81
S.Ct. 125 (1960); Davis v. Schnell, 81 F. Supp. 872 (S.D. Ala.)
aff'd. per curiam, 336 U.S. 933, 69 S.Ct. 749, 93 L.Ed. 1093
(1949), or to encourage private discriminatory action, Reitman
v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967);
Griffin v. County School Board of Prince Edward County,
377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964); Hall v. St.
Helena Parish School Board, 197 F. Supp. 649 (E.D.La. 1961)
aff'd. per curiam 368 U.S. 515, 82 S.Ct. 529, 7 L.Ed.2d 521
(1962), courts often ignore other purposes and rely solely
upon the impermissible, discriminatory objective.
The plaintiffs argue that, even without consideration of
legislative motive, Public Act 76-1964 should be invalidated
since it constitutes an unconstitutional delegation of power
without standards to the Secretary of State to break ties in
the order of filing nominating petitions. Plaintiffs' reliance
upon the traditional nondelegation doctrine, e. g., Panama
Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446
(1935), is misplaced. That doctrine is a product of the
separation of powers concept in the federal Constitution and is
inapplicable to state statutes, Ohio ex rel. Bryant v. Akron
Park District, 281 U.S. 74, 79, 50 S.Ct. 228, 74 L.Ed. 710
(1930); Consolidated Rendering Co. v. Vermont, 207 U.S. 541,
552, 28 S.Ct. 178, 52 L.Ed. 327 (1908).
Plaintiffs maintain, however, that broad delegations without
standards to state officials may violate due process. We agree
that such delegations may create a substantial risk of
arbitrary action and, where important rights are involved, a
due process argument may be raised. Thus uncontrolled
discretion in granting permits for the use of public
facilities creates a substantial risk of prior restraints on
speech and has been held to be unconstitutional, Niemotko v.
Maryland, 340 U.S. 268, 271-273, 71 S.Ct. 325, 328, 95 L.Ed.
267, 280 (1951); cf. Staub v. City of Baxley, 355 U.S. 313, 78
S.Ct. 277, 2 L.Ed.2d 302 (1958). Similarly, delegation of power
to local officials to administer a voting qualification
provision of the Louisiana constitution was held to be in
violation of due process, Louisiana v. United States,
380 U.S. 145, 85 S.Ct. 817, 13 L.Ed.2d 709 (1965). We think those cases
are distinguishable from the instant situation because of the
fundamental importance of the rights involved and because of
the inability of courts to effectively protect the plaintiffs'
interests short of invalidating the delegation of power. Here
we can adequately protect the plaintiffs' right to
equal protection in the allocation of ballot positions by the
issuance of an injunction similar to that employed by the
Court of Appeals in the Weisberg case.
The plaintiffs have asked for a permanent injunction to
prohibit Secretary of State Powell from engaging in lawless
and unconstitutional action similar to that employed by him in
previous elections. We think our jurisdiction as a three-judge
court permits us to consider such an injunction even though we
hold Public Act 76-1964 to be constitutional, Zemel v. Rusk,
381 U.S. 1, 6, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965); Florida
Lime and Avocado Growers, Inc. v. Jacobsen, 362 U.S. 73, 80,
80 S.Ct. 568, 4 L.Ed.2d 568 (1960).
In most cases injunctive relief on the basis of verbal
threats of discriminatory action by state officials is
considered premature. We think this general rule is
inapplicable to cases involving preparation of ballots for an
election because of the difficulty of fashioning relief after
ballots have been certified, William v. Rhodes, 393 U.S. 23,
89 S.Ct. 5, 21 L.Ed.2d 24 (1968), and because of the
likelihood that plaintiffs' cause of action will be mooted by
holding the election, Brockington v. Rhodes, 396 U.S. 41, 90
S.Ct. 206, 24 L.Ed.2d 209 (1969).
The threat of unlawful action in this case is sufficient to
call for the issuance of a permanent injunction. As we noted
in our memorandum opinion of December 5, 1969, Secretary of
State Powell has repeatedly stated that Public Act 76-1964
permits him to engage in practices utilized in the past. More
recently he has argued that favoring certain candidates on the
basis of "incumbency" or "seniority" is constitutionally
permissible and permitted by Public Act 76-1964. We disagree.
The Fourteenth Amendment requires all candidates, newcomers
and incumbents alike, to be treated equally. The
Weisberg case expressly condemned Secretary of State Powell's
attempt to favor personal acquaintances and party regulars by
awarding them top positions on the ballot. We will not permit
him to achieve the same result by the transparent device of
favoring incumbents or those with "seniority." Therefore, we
have decided to make permanent the temporary injunction issued
by this court on December 5, 1969.
Accordingly, it is ordered and decreed that the defendants,
and those acting in their behalf, are permanently enjoined
from breaking ties in the order of listing nominating
petitions on primary ballots for the election to be held on
March 17, 1970, and from certification thereof, by any means
other than a drawing of candidates' names by lot or other
nondiscriminatory means by which each of such candidates shall
have an equal opportunity to be placed first on the ballot.
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