Johnston v. Luna, 338 F. Supp. 355 (N.D. Tex. 1972)

OPINION AND ORDER

Before THORNBERRY, Circuit Judge, and HUGHES and TAYLOR, District Judges.

PER CURIAM.

This Court in Carter v. Dies, N.D.Tex. 1970, 321 F.Supp. 1358, previously enjoined the enforcement of Tex.Election Code Ann. Arts. 13.07a, 13.08, 13.08a, 13.15, 13.16 (1967), V.A.T.S. The decision was based on our judgment that the State’s interest in recouping election expenses was not of a sufficiently compelling nature to justify the infringement on the first amendment rights of voters in the State of Texas resulting from the imposition of any assessment whatsoever on potential primary candidates.

We did intimate in Carter v. Dies, supra, that an assessment of filing fees based on the State’s interest in regulating the size of the ballot and preventing frivolous candidacies might justify either a nominal or reasonable fee. It is enough to say that House Bill No. 5 does not represent such an undertaking by the State. House Bill No. 5 is no less a device for the recoupment of election expenses than was the previous Election Code. See Campbell v. Davenport, 5th Cir. 1966, 362 F.2d 624. It is, therefore, no less unconstitutional.

The State argues that our holding the imposition of filing fees for revenue purposes unconstitutional will leave the State only one reasonable alternative for financing primary elections — the use of State funds. The State contends that such a use of State funds is impermissible under Waples v. Marrast, 108 Tex. 5, 184 S.W. 180 (1916), wherein the Texas Supreme Court concluded that primary elections were private affairs for the sole benefit of the political parties involved, and did not constitute a “public function” for which State funds could be used. We believe this Texas Supreme Court holding, decided in 1916 and untested since that date, to be highly ques

tionable in light of subsequent United States Supreme Court decisions holding State primaries to be public affairs conducted for the benefit of all citizens — be they black or white, rich or poor. See Smith v. Allwright, 321 U.S. 649, 64 S. Ct. 757, 88 L.Ed. 987 (1944)., Reliance by the State on such a questionable decision cannot have any effect on our judgment here.

Based on our previous decision in Carter v. Dies, supra, and the fact that there has been no modification of the Texas Election Code justifying a different result in the instant case, we hold that House Bill No. 5, providing for filing fees for candidates for public office and in the alternative for a pauper’s affidavit accompanied by a petition of a certain number of qualified voters, is therefore invalid and void.

Those officials charged with the enforcement of House Bill No. 5 are enjoined from its further implementation.

The County and State Executive Committees are directed to make such rules for the primary elections for 1972 as are necessary and consistent with Carter v. Dies, supra.

The Court retains jurisdiction to consider any problems arising out of compliance with this Order.

APPENDIX A

ELECTIONS — PRIMARIES — EXPENSES — ASSESSMENT OF CANDIDATES — PETITION OF VOTERS

CHAPTER II

H. B. No. 5

An Act enacting temporary provisions relating to the method of conducting and financing primary elections and to the fees, assessments, and deposits levied against candidates: amending the Texas Election Code as follows: amending Section 185a, as amended (Article 13.07a, Vernon's Texas Election Code) by adding Subsection (3); amending Subsection (1), Section 186, as amended (Article 13.08); amending Section 186, as amended (Article 13.08), by adding Subsections (5), (6), and (7); adding Section 186c; repealing Section 186a, as amended (Article 13.08a), Section 186a-l (Article 13.08a — 1), and Section 194, as amended (Article 13.16); providing penalties; making the Act effective only upon the occurrence of certain conditions and fixing the expiration date if the Act becomes effective; and declaring an emergency.

Section 1. Section 185a, Texas Election Code, as amended (Article 13.07a, Vernon’s Texas Election Code), is amended by adding35 Subsection (3), to read as follows:

“(3) If a candidate is unable to pay the deposit or filing fee as required by Subsection (1) of this section, in lieu of payment he may file with his application a petition of voters, as provided in Section 186c of this code, and he shall not then be required to pay any deposit, fee, or assessment as a condition for having his name printed on the ballot for either the primary election or the general election; when filing such petition, it shall be accompanied by the following affidavit:

“ T am not financially able to pay the filing fee required to file for the office set forth in the attached application. In lieu therefor I submit the following petition signed by 10% of the number of votes cast for the_ (Democratic, Republican, etc.) Party’s candidate for Governor in the last preceding General Election in the territory in which I am running.’ ”

Sec. 2. Subsection (1), Section 186, Texas Election Code, as amended (Article 13.08, Vernon’s Texas Election Code), is amended36 to read as follows:

“(1) On or before the second Monday in February preceding each general primary election, the county committee shall carefully estimate the cost of printing the official ballots, renting polling places where same may be found necessary, providing and distributing all necessary poll books, blank stationery and voting booths required, compensation of elec

tion officers and clerks, and all other necessary expenses of holding the general primary and second primary in such county. On the second Monday in February, the committee shall meet and apportion such cost in such manner as in their judgment is just and equitable among the various candidates for nomination for district, county, and precinct offices who did not file with their application a supporting petition of voters as provided in Section 186c of this code, except the offices of Justice of the Court of Civil Appeals and members of the State Board of Education. Where a district office covers more than one county, the assessment of such candidate by the county shall be not more than a sum which is the quotient of the amount which he would be assessed if he represented only one county determined by the formula used to assess county candidates, when divided by the number of counties in his district. In making the assessment upon any candidate the committee shall give due consideration to the importance, emolument, and term of office for which the nomination is to be made. The committee may not assess any candidate an amount in excess of four percent of the total compensation payable for the particular term of office (full or partial) which he is seeking. Within 24 hours after adjournment of the meeting, the chairman shall mail to each person against whom an assessment is made a notice stating the amount of the expenses apportioned to him and informing him that on or before the fourth Monday in February he must pay to the chairman the difference between the amount apportioned to him and the amount of the deposit which accompanied the application which he filed with the chairman. No such person’s name shall be placed on the ballot unless he complies with these requirements within the prescribed time. The notices shall be sent to the candidates by registered or certified mail, and the chairman shall obtain a receipt for each letter, postmarked by the post office at which the letter is mailed, as evidence of the mailing, and shall preserve the receipts for a period of three months.”

Sec. 3. Section 186, Texas Election Code, as amended (Article 13.08, Vernon's Texas Election Code), is amended by adding37 Subsections (5), (6), and

(7), to read as follows:

Sec. 4. The Texas Election Code is amended by adding38 Section 186c, to read as follows:

ALL TERMS CAREFULLY,’ and the following information with respect to each person signing it: his address, the number of his voter registration certificate for the voting year in which the election is held and also the county of issuance if different from the county in which he resides at the time of signing, and the date of signing.

Sec. 5. The following sections of the Texas Election Code are repealed:39 Section 186a, as amended (Article 13.08a, Vernon’s Texas Election Code), Section 186a-l (Article 13.08a-l), and Section 194, as amended (Article 13.16).

Sec. 6.40 If any provision of this Act or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are declared to be severable.

Sec. 7.41 (a) This Act is enacted as a contingent, temporary law, to become effective only as stated in Subsection (b) of this section; and if it does become effective, it expires on December 31, 1972.

(b) This Act becomes effective only upon the condition that, before January 1, 1972:

(1) the Supreme Court of the United States does not dispose of the appeal filed in that court from the judgment of the United States District Court for the Northern District of Texas, Dallas Division, in Civil Action No. CA 3-3635-C, styled Van Phillip Carter v. Martin Dies, Jr., et al., by action which becomes final before January 1, 1972; or

(2) the Supreme Court of the United States affirms or refuses to review the judgment of the district court in the aforesaid case, or by other action taken upon an appeal of that case the Supreme Court rules that either of the following sections of the Texas Election Code as they exist before the amendments made by this Act violates the Constitution of the United States: Sections 185a, 186, 186a, 193, and 194.

(c) Not later than January 5, 1972, the Attorney General of Texas shall certify to the Governor and to the Secretary of State whether either of the two conditions stated in Subsection (b) has been fulfilled, and the Governor immediately shall issue his proclamation declaring whether this Act becomes effective. If either of the conditions for effectiveness is fulfilled, the Act takes effect on the date of the Governor’s proclamation.

(d) If this Act takes effect, upon its expiration on December 31, 1972, the law as it existed before the effective date of the Act again becomes operative until otherwise provided by the Legislature.

Sec. 8. The importance of this legislation and the crowded condition of the calendars in both houses create an emergency and an imperative public necessity that the Constitutional Rule requiring bills to be read on three several days in each house be suspended, and this Rule is hereby suspended.

Passed by the House on June 4, 1971: Yeas, 110, Nays 23; passed by the Senate on June 4, 1971, by a viva voce vote.

Approved June 15, 1971.

Effective Sept. 3, 1971, 90 days after date of adjournment.