Before Swygert, Chief Circuit Judge, and Marovitz and Bauer,
The opinion of the court was delivered by: Swygert, Chief Circuit Judge.
This case consolidates two actions, each of which attacks
the constitutionality of sections 7-43(a), (d), and 7-44 of
Chapter 46, Ill.Rev.Stat. Sections 7-43(a) and 7-44 condition
voting in any primary upon a public declaration of party
affiliation. Section 7-44 prohibits voting in the primary of
one party if the voter has voted in the primary of another
party within the preceding twenty-three months.*fn1
Plaintiffs seek declaratory and injunctive relief under
28 U.S.C. § 1343, 2281 and 42 U.S.C. § 1983.
The parties bringing the action are qualified Chicago and
Lake County voters (plaintiffs Pontikes and Lombardo,
respectively) who had voted in one party's primary in February
1971 and who now seek to vote in a different party's primary
in March 1972, and a Lake County voter (plaintiff Klaetsch)
who, though eligible to vote in any primary, challenges the
restrictions that will attend her voting in March. Defendants
are those officials responsible for the conduct of primary and
general elections in each area, the Commissioners of the
Chicago Board of Elections and the Clerk of Lake County.
The complaint in Pontikes v. Kusper was filed in district
court in September 1971 and that in Klaetsch v. Stern in
October 1971. A request for a three-judge court was
subsequently granted, and the two actions were consolidated.
The plaintiffs principally charge that section 7-43(d), which
outlines the so-called "twenty-three month" rule, is
unconstitutional because it impinges upon the right to vote
and the right of association. They claim further that sections
7-43(a) and 7-44, the sections requiring a declaration of
party affiliation, should fall as violative of the right to
privacy, the right to vote, the right of association, and the
provisions of the Voting Rights Act of 1960, 42 U.S.C. § 1971.
They seek summary judgment based on these contentions. The
defendants move to dismiss the complaint on the ground that no
"case or controversy" has been presented, that no substantial
federal question has been raised to vest jurisdiction in this
court, and that even if jurisdiction were sustained, the
federal courts should abstain from exercising it. We find no
merit to these contentions and accordingly, we deny the
defendants' motion. We grant the plaintiffs' motion for summary
judgment only where section 7-43(d) is concerned. We find no
basis for overturning sections 7-43(a) or 7-44.
The issues raised in the defendants' motion to dismiss have
been considered and rejected by this court and others.
Numerous cases have held that constitutional attacks on
primary regulations by those immediately affected,
prior to the primary date, do meet the requirements of a "case
or controversy." See Williams v. Rhodes, 393 U.S. 23, 89 S.Ct.
5, 21 L.Ed.2d 24 (1968); Rosario v. Rockefeller, No. 71-C-1573
— Eisner v. Rockefeller, No. 71-C-1621 (E.D.N.Y., filed Feb.
10, 1972); Bendinger v. Ogilvie, 335 F. Supp. 572 (N.D.Ill.,
1971); Jackson v. Ogilvie, 325 F. Supp. 864 (N.D.Ill. 1971).
Moreover, this action raises several significant federal
questions, principally the impact of the challenged statutes
on the plaintiffs' right to vote and right of association. In
Bendinger v. Ogilvie, supra, which involved a statute barring
candidates from running in a primary who had voted in another
party's primary within the preceding twenty-four months, this
court did not contest the fact that primaries were subject to
federal constitutional standards and considered only whether
these standards were met. Similarly, jurisdiction was properly
found in two recent federal cases which dealt with primary
election procedures comparable to those at issue here, Gordon
v. Executive Comm. of the Democratic Party of the City of
Charleston, 335 F. Supp. 166 (D.S.C. 1971), and Rosario v.
Finally, we see no reason to abstain from exercising our
jurisdiction. There are no unsettled questions of state law at
issue here which would require state court interpretation. The
statutes involved are unambiguous. The only point in question
is their conformity to the federal Constitution, a question we
are mandated to resolve.
The plaintiffs' attack against section 7-43(d) is grounded
upon both the right of association and the right to vote. We
agree that the "twenty-three month rule" substantially burdens
plaintiffs' right to vote in derogation of Article I, § 2 of
the Constitution, S.H.A. Those who have voted in the March 1971
primary of one party are now deprived of the right to vote in
the March 1972 primary should they choose to switch parties at
this time. Even voters eligible to vote in any primary this
March are affected since they are forced to choose between
their right to vote and their right to freely affiliate within
the twenty-three month period following the election. The
defendants counter that the right to vote protected by the
Constitution does not include the right to vote in a primary.
They characterize primaries as the purely internal procedures
of private organizations. We find the holding in United States
v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941),
Where the state law has made the primary an
integral part of the procedure of choice, or where
in fact the primary effectively controls the
choice, the right of the elector to have his ballot
counted at the primary, is likewise included in the
right protected by Article I, § 2. 313 U.S. at 318,
61 S.Ct. at 1039. (Emphasis added.)
See Williams v. Rhodes, supra; Moore v. Ogilvie, 394 U.S. 814,
89 S.Ct. 1493, 23 L.Ed.2d 1 (1968); Gray v. Sanders,
372 U.S. 367, 83 S.Ct. 801, 9 L.Ed.2d 821 (1962); Smith v. Allwright,
321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944); Gordon v.
Exec. Comm., supra; Rosario v. Rockefeller, supra. Since in
Illinois, primaries are subject to extensive state regulation,
Ill.Rev.Stat. ch. 46, they fall squarely within the test of
In addition, we agree that the contested statute represents
a significant incursion on the plaintiffs' rights of free
association. It has the effect of attaching penalties to
affiliation and disaffiliation since voters may not change
parties during the twenty-three month period without being
disenfranchised in the party primary of their choice.
In determining whether the State has power to
place such unequal burdens on minority groups
where rights of this kind are at stake, the
decisions of this Court have consistently held
that `only a compelling state interest in the
regulation of a subject within the State's
constitutional power to regulate can justify
limiting First Amendment freedoms.' 393 U.S. at
31, 89 S.Ct. at 11.
Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct.
1886, 23 L.Ed.2d 583 (1969), used a "compelling state
interest" standard where only a deprivation of the right to
vote rather than of first amendment rights was charged. More
recently this court in Bendinger v. Ogilvie, supra, applied the
identical test. See Rosario v. Rockefeller, supra.
The interest which section 7-43(d) is claimed to protect is
the state's interest in guarding against any distortions of
the electoral process in general and in maintaining the
integrity of the two-party system in particular. The statute
serves these interests by preventing a practice known as
"raiding." "Raiding" occurs when members of one party vote in
the primary of another party for the sole purpose of bringing
about the nomination of the weakest candidate. But the statute
sweeps too broadly, impeding both deceptive conduct and
constitutionally protected activities. If section 7-43(d) were
not in effect, massive party switching could occur either
because of the well-planned raiding of one party's primary by
members of another party, or because of massive
dissatisfaction with the prevailing policies of an existing
party. The state's interest upon which this statute is
grounded could be characterized as "compelling" only if the
former alternative is more likely to occur than the latter, or
if raiding constitutes a more important danger than the danger
to constitutionally protected rights however often it occurs.
There is no evidence to indicate that raiding is more likely
to take place than "honest" switches of affiliation.
Forty-four states do not impose post-election restraints on
changing affiliation. This would indicate that raiding is not
a serious threat to the multi-party system.
Moreover, we cannot say that the mere possibility of raiding
is more important than the potential deprivation of first
amendment and voting rights this statute effects. The state's
interest in maintaining a multi-party system has been found to
be "compelling" at the primary level only where constitutional
claims were raised by candidates who were barred from running
in one party's primary when they had voted in another party's
primary within the previous two years, Bendinger v. Ogilvie,
supra, or within the previous four years, Lippitt v. Cipollone,
404 U.S. 1032, 92 S.Ct. 729, 30 L.Ed.2d 725 (U.S., 1972), and
by candidates who were required to sign oaths affirming their
support for the presidential and vice-presidential candidates
of the party to which they claimed allegiance, Ray v. Blair,
343 U.S. 214, 72 S.Ct. 654, 96 L.Ed. 894 (1952).
Where — as in the instant case — the state's interest is
weighed against the constitutional claims of political party
members, the outcome has been different. In Williams v. Rhodes,
supra, burdens on the right to form a party capable of
effectively competing with other parties could not be justified
by the state's interest in promoting a multi-party system. In
Rosario v. Rockefeller, supra, and Gordon v. Exec. Comm.,
supra, state laws which affected constitutional rights in the
same fashion as the Illinois law also fell where the identical
justifications were offered. Indeed, dicta in ...