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March 7, 1972


Before Swygert, Chief Circuit Judge, and Marovitz and Bauer, District Judges.

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. Rockefeller, supra.

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), dispositive:

  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 Classic.

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.

Where a deprivation of the right to association or the right to vote is at stake, the statute will only be upheld if the state proves that it serves a "compelling" state interest. In Williams, the Court considered a challenge to several Ohio election laws which were claimed to make it "virtually impossible" for a new political party to be placed on state ballots for the purpose of choosing electors pledged for particular presidential or vice-presidential candidates. The Court stated:

  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 ...

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