393 U.S.

23
89 S.Ct. 5
21 L.Ed.2d 24

Glen A. WILLIAMS et al., Appellants,

v.
James A. RHODES et al. SOCIALIST LABOR PARTY et al.,
Appellants, v. James A. RHODES et al.
Nos. 543, 544.
Argued Oct. 7, 1968.
Decided Oct. 15, 1968.

David J. Young, Columbus, Ohio, and Jerry Gordon, Cleveland Heights,

Ohio, for appellants, pro hac vice, by special leave of Court.
Charles S. Lopeman, Columbus, Ohio, for appellees.
Mr. Justice BLACK delivered the opinion of the Court.

The State of Ohio in a series of election laws has made it virtually impossible
for a new political party, even though it has hundreds of thousands of members,
or an old party, which has a very small number of members, to be placed on the
state ballot to choose electors pledged to particular candidates for the
Presidency and Vice Presidency of the United States.

Ohio Revised Code, 3517.01, requires a new party to obtain petitions signed
by qualified electors totaling 15% of the number of ballots cast in the last
preceding gubernatorial election. The detailed provisions of other Ohio election
laws result in the imposition of substantial additional burdens, which were
accurately summarized in Judge Kinneary's dissenting opinion in the court
below and were substantially agreed on by the other members of that court.1
Together these various restrictive provisions make it virtually impossible for
any party to qualify on the ballot except the Republican and Democratic
Parties. These two Parties face substantially smaller burdens because they are
allowed to retain their positions on the ballot simply by obtaining 10% of the
votes in the last gubernatorial election and need not obtain any signature
petitions. Moreover, Ohio laws make no provision for ballot position for

independent candidates as distinguished from political parties. The State of

Ohio claims the power to keep minority parties and independent candidates off
the ballot under Art. II, 1, of the Constitution, which provides that:
3

'Each State shall appoint, in such Manner as the Legislature thereof may direct,
a Number of Electors, equal to the whole Number of Senators and
Representatives to which the State may be entitled in the Congress * * *.'

The Ohio American Independent Party, an appellant in No. 543, and the
Socialist Labor Party, an appellant in No. 544, both brought suit to challenge
the validity of these Ohio laws as applied to them, on the ground that they deny
these Parties and the voters who might wish to vote for them the equal
protection of the laws, guaranteed against state abridgment by the Equal
Protection Clause of the Fourteenth Amendment. The three-judge District
Court designated to try the case ruled these restrictive Ohio election laws
unconstitutional but refused to grant the Parties the full relief they had sought,
290 F.Supp. 983 (D.C.S.D.Ohio 1968), and both Parties have appealed to this
Court. The cases arose in this way:

The Ohio American Independent Party was formed in January 1968 by Ohio
partisans of former Governor George C. Wallace of Alabama. During the
following six months a campaign was conducted for obtaining signatures on
petitions to give the Party a place on the ballot and over 450,000 signatures
were eventually obtained, more than the 433,100 required. The State contends
and the Independent Party agrees that due to the interaction of several
provisions of the Ohio laws, such petitions were required to be filed by
February 7, 1968, and so the Secretary of the State of Ohio informed the Party
that it would not be given a place on the ballot. Neither in the pleadings, the
affidavits before the District Court, the arguments there, nor in our Court has
the State denied that the petitions were signed by enough qualified electors of
Ohio to meet the 15% requirement under Ohio law. Having demonstrated its
numerical strength, the Independent Party argued that this and the other
burdens, including the early deadline for filing petitions and the requirement of
a primary election conforming to detailed and rigorous standards, denied the
Party and certain Ohio voters equal protection of the laws. The three-judge
District Court unanimously agreed with this contention and ruled that the State
must be required to provide a space for write-in votes. A majority of the
District Court refused to hold, however, that the Party's name must be printed
on the ballot, on the ground that Wallace and his adherents had been guilty of
'laches' by filing their suit too late to allow the Ohio Legislature an opportunity
to remedy, in time for the presidential balloting, the defects which the court
held the law possessed. The appellants in No. 543 then moved before Mr.

Justice Stewart, Circuit Justice for the Sixth Circuit, for an injunction which
would order the Party's candidates to be put on the ballot pending appeal. After
consulting with the other members of the Court who were available, and after
the State represented that the grant of interlocutory relief would be in the
interests of the efficient operation of the electoral machinery if this Court
considered the chances of successful challenge to the Ohio statutes good, Mr.
Justice Stewart granted the injunction, 89 S.Ct. 1, 21 L.Ed.2d 69.
6

The Socialist Labor Party, an appellant in No. 544, has all the formal attributes
of a regular party. It has conventions and a State Executive Committee as
required by the Ohio law, and it was permitted to have a place on the ballot
until 1948. Since then, however, it has not filed petitions with the total
signatures required under new Ohio laws for ballot position, and indeed it
conceded it could not do so this year. The same three-judge panel heard the
Party's suit and reached a similar resultwrite-in space was ordered but ballot
position was denied the Socialist Labor Party. In this case the District Court
assigned both the Party's small membership of 108 and its delay in bringing suit
as reasons for refusing to order more complete relief for the 1968 election. A
motion to stay the District Court's judgment was presented to Mr. Justice
Stewart several days after he had ordered similar relief in the Independent Party
case. The motion was denied principally because of the Socialist Party's failure
to move quickly to obtain relief, with the consequent confusion that would be
caused by requiring Ohio once again to begin completely reprinting its election
ballots, but the case was set by this Court for oral argument, along with the
Independent Party case.

I.
7

Ohio's claim that the political-question doctrine precludes judicial consideration

of these cases requires very little discussion. That claim has been rejected in
cases of this kind numerous times. It was rejected by the Court unanimously in
1892 in the case of McPherson v. Blacker, 146 U.S. 1, 2324, 13 S.Ct. 3, 6, 36
L.Ed. 869 and more recently it has been squarely rejected in Baker v. Carr, 369
U.S. 186, 208237, 82 S.Ct. 691, 705721, 7 L.Ed.2d 663 (1962), and in
Wesberry v. Sanders, 376 U.S. 1, 57, 84 S.Ct. 526, 528530, 11 L.Ed.2d
481 (1964). Other cases to the same effect need not now be cited. These cases
do raise a justiciable controversy under the Constitution and cannot be
relegated to the political arena.

II.
8

The State also contends that it has absolute power to put any burdens it pleases

on the selection of electors because of the First Section of the Second Article of
the Constitution, providing that 'Each State shall appoint, in such Manner as the
Legislature thereof may direct, a Number of Electors * * *' to choose a
President and Vice President. There, of course, can be no question but that this
section does grant extensive power to the States to pass laws regulating the
selection of electors. But the Constitution is filled with provisions that grant
Congress or the States specific power to legislate in certain areas; these granted
powers are always subject to the limitation that they may not be exercised in a
way that violates other specific provisions of the Constitution. For example,
Congress is granted broad power to 'lay and collect Taxes,'2 but the taxing
power, broad as it is, may not be invoked in such a way as to violate the
privilege against self-incrimination.3 Nor can it be thought that the power to
select electors could be exercised in such a way as to violate express
constitutional commands that specifically bar States from passing certain kinds
of laws. Clearly, the Fifteenth and Nineteenth Amendments were intended to
bar the Federal Government and the States from denying the right to vote on
grounds of race and sex in presidential elections. And the Twenty-fourth
Amendment clearly and literally bars any State from imposing a poll tax on the
right to vote 'for electors for President or Vice President.' Obviously we must
reject the notion that Art. II, 1, gives the States power to impose burdens on
the right to vote, where such burdens are expressly prohibited in other
constitutional provisions. We therefore hold that no State can pass a law
regulating elections that violates the Fourteenth Amendment's command that
'No State shall * * * deny to any person * * * the equal protection of the laws.'
III.
9

We turn then to the question whether the court below properly held that the
Ohio laws before us result in a denial of equal protection of the laws. It is true
that this Court has firmly established the principle that the Equal Protection
Clause does not make every minor difference in the application of laws to
different groups a violation of our Constitution. But we have also held many
times that 'invidious' distinctions cannot be enacted without a violation of the
Equal Protection Clause. 4 In determining whether or not a state law violates the
Equal Protection Clause, we must consider the facts and circumstances behind
the law, the interests which the State claims to be protecting, and the interests
of those who are disadvantaged by the classification.5 In the present situation
the state laws place burdens on two different, although overlapping, kinds of
rights the right of individuals to associate for the advancement of political
beliefs, and the right of qualified voters, regardless of their political persuasion,
to cast their votes effectively. Both of these rights, of course, rank among our
most precious freedoms. We have repeatedly held that freedom of association is

protected by the First Amendment.6 And of course this freedom protected

against federal encroachment by the First Amendment is entitled under the
Fourteenth Amendment to the same protection from infringement by the
States.7 Similarly we have said with reference to the right to vote: 'No right is
more precious in a free country than that of having a voice in the election of
those who make the laws under which, as good citizens, we must live. Other
rights, even the most basic, are illusory if the right to vote is undermined.'8
10

No extended discussion is required to establish that the Ohio laws before us

give the two old, established parties a decided advantage over any new parties
struggling for existence and thus place substantially unequal burdens on both
the right to vote and the right to associate. The right to form a party for the
advancement of political goals means little if a party can be kept off the
election ballot and thus denied an equal opportunity to win votes. So also, the
right to vote is heavily burdened if that vote may be cast only for one of two
parties at a time when other parties are clamoring for a place on the ballot. 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.' NAACP v. Button, 371 U.S. 415,
at 438, 83 S.Ct. 328, at 341 (1963).

11

The State has here failed to show any 'compelling interest' which justifies
imposing such heavy burdens on the right to vote and to associate.

12

The State asserts that the following interests are served by the restrictions it
imposes. It claims that the State may validly promote a two-party system in
order to encourage compromise and political stability. The fact is, however,
that the Ohio system does not merely favor a 'two-party system'; it favors two
particular partiesthe Republicans and the Democrats and in effect tends to
give them a complete monopoly. There is, of course, no reason why two parties
should retain a permanent monopoly on the right to have people vote for or
against them. Competition in ideas and governmental policies is at the core of
our electoral process and of the First Amendment freedoms. New parties
struggling for their place must have the time and opportunity to organize in
order to meet reasonable requirements for ballot position, just as the old parties
have had in the past.

13

Ohio makes a variety of other arguments to support its very restrictive election
laws. It points out, for example, that if three or more parties are on the ballot, it
is possible that no one party would obtain 50% of the vote, and the runner-up

might have been preferred to the plurality winner by a majority of the voters.
Concededly, the State does have an interest in attempting to see that the election
winner be the choice of a majority of its voters. But to grant the State power to
keep all political parties off the ballot until they have enough members to win
would stifle the growth of all new parties working to increase their strength
from year to year. Considering these Ohio laws in their totality, this interest
cannot justify the very severe restrictions on voting and associational rights
which Ohio has imposed.
14

The State also argues that its requirement of a party structure and an organized
primary insures that those who disagree with the major parties and their
policies 'will be given a choice of leadership as well as issues' since any leader
who attempts to capitalize on the disaffection of such a group is forced to
submit to a primary in which other, possibly more attractive, leaders can raise
the same issues and compete for the allegiance of the disaffected group. But
while this goal may be desirable, Ohio's system cannot achieve it. Since the
principal policies of the major parties change to some extent from year to year,
and since the identity of the likely major party nominees may not be known
until shortly before the election, this disaffected 'group' will rarely if ever be a
cohesive or identifiable group until a few months before the election. Thus,
Ohio's burdensome procedures, requiring extensive organization and other
election activities by a very early date, operate to prevent such a group from
ever getting on the ballot and the Ohio system thus denies the 'disaffected' not
only a choice of leadership but a choice on the issues as well.

15

Finally Ohio claims that its highly restrictive provisions are justified because
without them a large number of parties might qualify for the ballot, and the
voters would then be confronted with a choice so confusing that the popular
will could be frustrated. But the experience of many States, including that of
Ohio prior to 1948, demonstrates that no more than a handful of parties
attempts to qualify for ballot positions even when a very low number of
signatures, such as 1% of the electorate, is required.9 It is true that the existence
of multitudinous fragmentary groups might justify some regulatory control but
in Ohio at the present time this danger seems to us no more than 'theoretically
imaginable.'10 No such remote danger can justify the immediate and crippling
impact on the basic constitutional rights involved in this case.

16

Of course, the number of voters in favor of a party, along with other

circumstances, is relevant in considering whether state laws violate the Equal
Protection Clause. And, as we have said, the State is left with broad powers to
regulate voting, which may include laws relating to the qualification and
functions of electors. But here the totality of the Ohio restrictive laws taken as a

whole imposes a burden on voting and associational rights which we hold is an

invidious discrimination, in violation of the Equal Protection Clause.
IV.
17

This leaves only the propriety of the judgments of the District Court. That court
held that the Socialist Labor Party could get relief to the extent of having the
right, despite Ohio laws, to get the advantage of write-in ballots. It restricted the
Independent Party to the same relief. The Independent Party went before the
District Court, made its challenge, and prayed for broader relief, including a
judgment declaring the Ohio laws invalid. It also asked that its name be put on
the ballot along with the Democratic and Republican Parties. The Socialist
Labor Party also went to the District Court and asked for the same relief. On
this record, however, the parties stand in different positions before us.
Immediately after the District Court entered its judgment, the new Independent
Party brought its case to this Court where Mr. Justice Stewart conducted a
hearing. At that hearing Ohio represented to Mr. Justice Stewart that the
Independent Party's name could be placed on the ballot without disrupting the
state election, but if there was a long delay, the situation would be different. It
was not until several days after that hearing was concluded and after Mr. Justice
Stewart had issued his order staying the judgment against the Independent
Party that the Socialist Labor Party asked for similar relief. The State objected
on the ground that at that time it was impossible to grant the relief to the
Socialist Labor Party without disrupting the process of its elections;
accordingly, Mr. Justice Stewart denied it relief, and the State now repeats its
statement that relief cannot be granted without serious disruption of election
process. Certainly at this late date it would be extremely difficult, if not
impossible, for Ohio to provide still another set of ballots. Moreover, the
confusion that would attend such a last-minute change poses a risk of
interference with the rights of other Ohio citizens, for example, absentee voters.
Under the circumstances we require Ohio to permit the Independent Party to
remain on the ballot, along with its candidates for President and Vice President,
subject, of course, to compliance with valid regulatory laws of Ohio, including
the law relating to the qualification and functions of electors. We do not require
Ohio to place the Socialist Party on the ballot for this election. The District
Court's judgment is affirmed with reference to No. 544, the Socialist Labor
Party case, but is modified in No. 543, the Independent Party case, with
reference to granting that Party the right to have its name printed on the ballot.
It is so ordered.

18

Judgment affirmed in No. 544 and modified in No. 543.

19

Mr. Justice STEWART concurs in the judgment in No. 544 insofar as it denies
equitable relief to the appellants.

20

Mr. Justice DOUGLAS.

I.
21

Ohio, through an entangling web of election laws, has effectively foreclosed its
presidential ballot to all but Republicans and Democrats. It has done so initially
by abolishing write-in votes so as to restrict candidacy to names on the ballot;1
it has eliminated all independent candidates through a requirement that
nominees enjoy the endorsement of a political party;2 it has defined 'political
party' in such a way as to exclude virtually all but the two major parties.3

22

A candidate who seeks a place on the Ohio presidential ballot must first
compile signatures of qualified voters who total at least 15% of those voting in
the last gubernatorial election. In this election year, 1968, a candidate would
need 433,100 such signatures. Moreover, he must succeed in gathering them
long before the general election, since a nominating petition must be filed with
the Secretary of State in February.4 That is not all: having compiled those
signatures, the candidate must further show that he has received the nomination
of a group which qualifies as a 'political party' within the meaning of Ohio law.5
It is not enough to be an independent candidate for President with wide popular
support; one must trace his support to a political party.6

23

To qualify as a party, a group of electors must participate in the state primary,

electing one of its members from each county ward or precinct to a county
central committee; two of its members from each congressional district to a
state central committee;7 and some of its members as delegates and alternates to
a national convention.8 Moreover, those of its members who seek a place on
the primary ballot as candidates for positions as central committeemen and
national convention delegates must demonstrate that they did not vote in any
other party primary during the preceding four years; 9 and must present petitions
of endorsement on their behalf by anywhere from five to 1,000 voters who
likewise failed to vote for any other party in the last preceding primary.10 Thus,
to qualify as a third party, a group must first erect elaborate political machinery,
and then rest it upon the ranks of those who have proved both unwilling and
unable to vote.

24

Having elected a central committee, the group has it convene a state convention
attended by 500 delegates duly apportioned throughout the State according to

party strength.11 Delegates to the state convention then go on to choose

presidential electors for certification on the November ballot, while elected
delegates to the national convention go on to nominate their candidate for
President. 12 Ohioans, to be sure, as a result of the decision below, enjoy the
opportunity of writing in the man of their choice on the ballot. But in a
presidential election, a vote for a candidate is only operative as a vote for the
electors representing him; and where the State has prevented that candidate
from presenting a slate of electors for certification, the write-in vote has no
effect. Furthermore, even where operative, the write-ins are no substitute for a
place on the ballot.
25

To force a candidate to rely on writeins is to burden him with disability. It

makes it more difficult for him to get elected, and for the voters to elect him.

26

These barriers of party, timing, and structure are great obstacles. Taken
together they render it difficult, if not impossible, for a man who disagrees with
the two major parties to run for President in Ohio, to organize an opposition,
and to vote a third ticket.

II.
27

The selection of presidential electors is provided in Art. II, 1, of the

Constitution. It is unnecessary in this case to decide whether electors are state
rather than federal officials, whether States may select them through
appointment rather than by popular vote, or whether there is a constitutional
right to vote for them. For in this case Ohio has already provided for them to be
chosen by right to popular suffrage. Having done so, the question is whether
Ohio may encumber that right with conditions of the character imposed here.

III.
28

The First Amendment, made applicable to the States by reason of the

Fourteenth Amendment, lies at the root of these cases. The right of association
is one form of 'orderly group activity' (NAACP v. Button, 371 U.S. 415, 430,
83 S.Ct. 328, 336, 9 L.Ed.2d 405), protected by the First Amendment. The right
'to engage in association for the advancement of beliefs and ideas' (NAACP v.
State of Alabama ex rel. Patterson, 357 U.S. 449, 460, 78 S.Ct. 1163, 1171, 2
L.Ed.2d 1488), is one activity of that nature that has First Amendment
protection. As we said in Bates v. City of Little Rock, 361 U.S. 516, 523, 80
S.Ct. 412, 416, 4 L.Ed.2d 480 'freedom of association for the purpose of
advancing ideas and airing grievances is protected by the Due Process Clause
of the Fourteenth Amendment from invasion by the States.' And see Louisiana

ex rel. Gremillion v. NAACP, 366 U.S. 293, 296, 81 S.Ct. 1333, 1335, 6
L.Ed.2d 301. At the root of the present controversy is the right to votea
'fundamental political right' that is 'preservative of all rights.' Yick Wo v.
Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 1071, 30 L.Ed. 220. The rights of
expression and assembly may be 'illusory if the right to vote is undermined.'
Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 535, 11 L.Ed.2d 481.
29

In our political life, third parties are often important channels through which
political dissent is aired: 'All political ideas cannot and should not be channeled
into the programs of our two major parties. History has amply proved the virtue
of political activity by minority, dissident groups, which innumerable times
have been in the vanguard of democratic thought and whose programs were
ultimately accepted. * * * The absence of such voices would be a symptom of
grave illness in our society.' Sweezy v. State of New Hampshire, 354 U.S. 234,
250251, 77 S.Ct. 1203, 1212, 1 L.Ed.2d 1311 (opinion of Warren, C.J.).

30

The Equal Protection Clause of the Fourteenth Amendment permits the States
to make classifications and does not require them to treat different groups
uniformly. Nevertheless, it bans any 'invidious discrimination.' Harper v.
Virginia State Board of Elections, 383 U.S. 663, 667, 86 S.Ct. 1079, 1081, 16
L.Ed.2d 169.

31

That command protects voting rights and political groups (Carrington v. Rash,
380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675), as well as economic units, racial
communities, and other entities. When 'fundamental rights and liberties' are at
issue (Harper v. Virginia State Board of Elections, supra, 383 U.S. at 670, 86
S.Ct. at 1083), a State has less leeway in making classifications than when it
deals with economic matters. I would think that a State has precious little
leeway in making it difficult or impossible for citizens to vote for whomsoever
they please and to organize campaigns for any school of thought they may
choose, whatever part of the spectrum it reflects.

32

Cumbersome election machinery can effectively suffocate the right of

association, the promotion of political ideas and programs of political action,
and the right to vote. The totality of Ohio's requirements has those effects. It is
unnecessary to decide whether Ohio has an interest, 'compelling' or not, in
abridging those rights, because 'the men who drafted our Bill of Rights did all
the 'balancing' that was to be done in this field.' Konigsberg v. State Bar, 366
U.S. 36, 61, 81 S.Ct. 997, 1012, 6 L.Ed.2d 105 (Black, J., dissenting).
Appellees would imply that 'no kind of speech is to be protected if the
Government can assert an interest of sufficient weight to induce this Court to
uphold its abridgment.' (Id., at 67, 81 S.Ct., at 1015.) I reject that suggestion.13

33

A three-judge district court held that appellants were entitled to the use of
write-in ballots. Yet it refrained from ordering the Ohio American Independent
Party to be placed on the ballot, relying partly on laches and partly on the
presence of what it deemed to be so-called 'political' questions. 290 F.Supp.
983. First Amendment rights, the right to vote, and other 'fundamental rights
and liberties' (Harper v. Virginia State Board of Elections, supra, 383 U.S. at
670, 86 S.Ct., at 1083) have a well-established claim to inclusion in justiciable,
as distinguished from 'political,' questions; and the relief the Court grants meets
the practical needs of appellees in preparing and distributing the ballots.

34

The Socialist Labor Party, with a lineage that goes back to the presidential
contest in 1892, by 1964 was on the ballot in 16 States. Today, although it has
only 108 members in Ohio, it earnestly presses its claim for recognition. Yet it
started the present action so late that concededly it would now be impossible to
get its name on all the ballots. The relief asked is of such a character that we
properly decline to allow the federal courts to play a disruptive role in this 1968
state election. On the merits, however, the Socialist Labor Party has as strong a
case as the American Independent Party, as my Brother HARLAN states and as
the Court apparently agrees. It is therefore proper for us to grant it declaratory
relief.

35

Hence I concur in today's decision; and, while my emphasis is different from

the Court's, I join its opinion.

36

Mr. Justice HARLAN, concurring in the result.

37

I agree that the American Independent Party is entitled to have the names of its
Presidential and Vice Presidential candidates placed on the Ohio ballot in the
forthcoming election, but that, for the practical reasons stated by the Court, the
Socialist Labor Party is not. However, I would rest this decision entirely on the
proposition that Ohio's statutory scheme violates the basic right of political
association assured by the First Amendment which is protected against state
infringement under the Due Process Clause of the Fourteenth Amendment. See
NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1964); Bates v.
City of Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960); NAACP
v. State of Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d
1488 (1958). It is true that Ohio has not directly limited appellants' right to
assemble or discuss public issues or solicit new members. Compare Thomas v.
Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1945); De Jonge v. State of
Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278 (1937); Near v. State of
Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931).
Instead, by denying the appellants any opportunity to participate in the

procedure by which the President is selected, the State has eliminated the basic
incentive that all political parties have for conducting such activities, thereby
depriving appellants of much of the substance, if not the form, of their protected
rights. The right to have one's voice heard and one's views considered by the
appropriate governmental authority is at the core of the right of political
association.
38

It follows that the particular method by which Presidential Electors are chosen
is not of decisive importance to a solution of the constitutional problem before
us. Just as a political group has a right to organize effectively so that its position
may be heard in court, NAACP v. Button, supra, or in the legislature, cf.
Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127,
137138, 81 S.Ct. 523, 529530, 5 L.Ed.2d 464 (1961); United States v.
Rumely, 345 U.S. 41, 4647, 73 S.Ct. 543, 546547, 97 L.Ed. 770 (1953);
United States v. Harriss, 347 U.S. 612, 625626, 74 S.Ct. 808, 811, 816817,
98 L.Ed. 989 (1954); so it has the right to place its candidate for the Presidency
before whatever body has the power to make the State's selection of Electors.
Consequently, it makes no difference that the State of Ohio may, under the
Second Article of the Constitution, place the power of Electoral selection
beyond the control of the general electorate. The requirement imposed by the
Due Process Clause remains the sameno matter what the institution to which
the decision is entrusted, political groups have a right to be heard before it. A
statute that would require that all Electors be members of the two major parties
is subject to the same constitutional challenge regardless of whether it is the
legislature, the people, or some other body that is empowered to make the
ultimate decision under the laws of the State.

39

Of course, the State may limit the right of political association by invoking an
impelling policy justification for doing so. But as my Brother BLACK'S
opinion demonstrates, Ohio has been able to advance no such justification for
denying almost half a million of its citizens their fundamental right to organize
effectively for political purposes. Consequently, it may not exclude them from
the process by which Presidential Electors are selected.

40

In deciding this case of first impression, I think it unnecessary to draw upon the
Equal Protection Clause. 1 I am by no means clear that equal protection
doctrine, especially as it has been propounded in the recent state
reapportionment cases, e.g., Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12
L.Ed.2d 506 (1964), may properly be applied to adjudicate disputes involving
the mere procedure by which the President is selected, as that process is
governed by profoundly different principles.2 Despite my doubts on this score,
I think it perfectly consistent and appropriate to hold the Due Process Clause

applicable. For I believe that our task is more difficult than one which involves
merely the mechanical application of the commands to be found in the
Fourteenth Amendment or in the first section of the Second Article to the
Constitution. Rather, we must attempt to accommodate as best we may the
narrow provision drafted by the Philadelphia Convention with the broad
principles announced in the Fourteenth Amendment, generations later.
41

A decision resting solely upon the Due Process Clause would permit such an
accommodationfor such a holding fully respects the original purposes and
early development of the Electoral College. When one looks beyond the
language of Article II, and considers the Convention's understanding of the
College, Ohio's restrictive approach is seen to undermine what the draftsmen
understood to be its very essence. The College was created to permit the most
knowledgeable members of the community to choose the executive of a nation
whose continental dimensions were thought to preclude an informed choice by
the citizenry at large.3 If a State declares that an entire class of citizens is
ineligible for the position of Elector, and that class is defined in a way in which
individual merit plays no part, it strikes at the very basis of the College as it
was originally conceived.

42

The constitutional grant of power to the States was intended for a different
purpose. While Madison reports that the popular election of Electors on a
district-by-district basis was the method 'mostly, if not exclusively, in view
when the Constitution was framed and adopted,' 3 M. Farrand, The Records of
the Federal Convention of 1787, p. 459 (1911), it is quite clear that a
significant, if not dominant, group4 at the Convention contemplated that
Electors would be chosen by other methods. It was to accommodate these
members that the state legislatures were given their present leeway. 5 While
during the first four decades of the Republic, the States did in fact adopt a
variety of methods for selecting their Electors,6 the parties in this case have
pointed to, and I have found, no case in which the legislature attempted by
statute to restrict the class of the enfranchised citizenry that could be considered
for the office by whatever body was to make the choice.7

43

Nothing in the history of the Electoral College from the moment of its
inception, then, indicates that the original understanding of that institution
would at all be compromised if we refuse to read the language of Art. II, 1, as
granting a power of arbitrary action which is so radically inconsistent with the
general principles of the Due Process Clause. Consequently, there is no
obstacle to a holding which denies the States, absent an overriding state
interest, the right to prevent third parties from having an opportunity to put their
candidates before the attention of the voters or whatever other body the State

has designated as the one which is to choose Electors.

44

A word should be added about the constitutional status of Ohio's requirement

that a third party, to qualify for ballot position, must collect the signatures of
eligible voters in a number equal to 15% of those voting at the last
gubernatorial election. As I do not understand the State to contest the fact that
Mr. Wallace and his partisans have successfully gathered more than the
433,100 signatures required by law, we can only properly reach this issue in the
Socialist Labor Party casefor this Party did not even attempt to comply with
the statutory command. While the Court's opinion, striking down Ohio's
statutory scheme in its entirety, does, as I read it, afford the Socialist Labor
Party declaratory relief from the 15% provision, I think it well to deal with it
more explicitly than the Court has done.

45

In my view, this requirement, even when regarded in isolation, must fall. As my

Brother BLACK'S opinion suggests, the only legitimate interest the State may
invoke in defense of this barrier to third-party candidacies is the fear that,
without such a barrier, candidacies will proliferate in such numbers as to create
a substantial risk of voter confusion.8 Ohio's requirement cannot be said to be
reasonably related to this interest. Even in the unprecedented event of a
complete and utter popular disaffection with the two established parties, Ohio
law would permit as many as six additional party candidates to compete with
the Democrats and Republicans only if popular support should be divided
relatively evenly among the new groups. And with fundamental freedoms at
stake, such an unlikely hypothesis cannot support an incursion upon protected
rights, especially since the presence of eight candidacies cannot be said, in light
of experience, to carry a significant danger of voter confusion. As both Ohio's
electoral history9 and the actions taken by the overwhelming majority of other
States10 suggest, opening the ballot to this extent is perfectly consistent with the
effective functioning of the electoral process. In sum, I think that Ohio has
fallen far short of showing the compelling state interest necessary to overcome
this otherwise protected right of political association.

46

Since Ohio's requirement is so clearly disproportionate to the magnitude of the

risk that it may properly act to prevent, I need not reach the question of the size
of the signature barrier a State may legitimately raise against third parties on
this ground. This should be left to the Ohio Legislature in the first instance.

47

Mr. Justice STEWART, dissenting in No. 543.

48

If it were the function of this Court to impose upon the States our own ideas of

wise policy, I might be inclined to join my Brethren in compelling the Ohio

election authorities to disregard the laws enacted by the legislature of that State.
We deal, however, not with a question of policy, but with a problem of
constitutional power. And to me it is clear that, under the Constitution as it is
written, the Ohio Legislature has the power to do what it has done.
I.
49

The Constitution does not provide for popular election of a President or Vice
President of the United States, either nationally or on a state-by-state basis. On
the contrary, the Constitution explicitly specifies:

50

'Each State shall appoint, in such Manner as the Legislature thereof may direct,
a Number of Electors, equal to the whole Number of Senators and
Representatives to which the State may be entitled in the Congress * * *.'1

51

(Emphasis supplied.) 'The Electors shall meet in their respective states and vote
by ballot for President and Vice-President * * *.'2

52

Chief Justice Fuller, therefore, was stating no more than the obvious when he
wrote for a unanimous Court in McPherson v. Blacker, 146 U.S. 1, 13 S.Ct. 3,
more than 75 years ago:

53

'The constitution does not provide that the appointment of electors shall be by
popular vote, nor that the electors shall be voted for upon a general ticket, nor
that the majority of those who exercise the elective franchise can alone choose
the electors. It recognizes that the people act through their representatives in
the legislature, and leaves it to the legislature exclusively to define the method
of effecting the object.

54

'In short, the appointment and mode of appointment of electors belong

exclusively to the states under the constitution of the United States. * * *' Id., at
27, 35, 13 S.Ct., at 7, 10.

55

A State is perfectly free under the Constitution to provide for the selection of
its presidential electors by the legislature itself. Such a process of appointment
was in fact utilized by several States throughout our early history, and by one
State, Colorado, as late as 1876.3 Or a state legislature might nominate two
slates of electors, and allow all eligible voters of the State to choose between
them. Indeed, many of the States formerly provided for the appointment of
presidential electors by various kinds of just such cooperative action of their

legislatures and their electorates. 4

56

Here, the Ohio Legislature has gone further, and has provided for a choice by
the State's eligible voters among slates of electors put forward by all political
parties that meet the evenhanded requirements of long-standing state laws. We
are told today, however, that, despite the power explicitly granted to the state
legislatures under Art. II, 1, the Legislature of Ohio nonetheless violated the
Constitution in providing for the selection of electors in this way. I can perceive
no such constitutional violation.

57

I agree with my Brethren that, in spite of the broad language of Art. II, 1, a
state legislature is not completely unfettered in choosing whatever process it
may wish for the appointment of electors. Three separate constitutional
amendments explicitly limit a legislature's power. The Fifteenth Amendment
makes clear that if voters are to be included in the process, no voter may be
excluded 'on account of race, color, or previous condition of servitude.' The
Nineteenth Amendment makes equally clear that no voter may be excluded 'on
account of sex.' And the Twenty-fourth Amendment prohibits exclusion of any
voter 'by reason of failure to pay any poll tax or other tax.' But no claim has
been or could be made in this case that any one of these Amendments has been
violated by Ohio.

58

Rather, it is said that Ohio has violated the provisions of the Fourteenth
Amendment. The Court holds that the State has violated that Clause of the
Amendment which prohibits if from denying 'to any person within its
jurisdiction the equal protection of the laws.' And two concurring opinions
emphasize First Amendment principles, made applicable to the States through
the Fourteenth Amendment's guarantees, in summarily concluding that Ohio's
statutory scheme is invalid. I concede that the Fourteenth Amendment imposes
some limitations upon a state legislature's freedom to choose a method for the
appointment of electors. A State may not, for example, adopt a system that
discriminates on grounds of religious or political belief. But I cannot agree that
Ohio's system violates the Fourteenth Amendment in any way.

II.
59

In view of the broad leeway specifically given the States by Art. II, 1, of the
Constitution, it seems clear to me that the basic standard of constitutional
adjudication under the Equal Protection Clausea standard under which only
'invidious discrimination' is forbiddenis the most stringent test that properly
can be held applicable here. A single quotation should suffice to summarize
that standard of equal protection:

60

'The constitutional safeguard is offended only if the classification rests on

grounds wholly irrelevant to the achievement of the State's objective. State
legislatures are presumed to have acted within their constitutional power
despite the fact that, in practice, their laws result in some inequality. A statutory
discrimination will not be set aside if any state of facts reasonably may be
conceived to justify it.' McGowan v. State of Maryland, 366 U.S. 420, 425
426, 81 S.Ct. 1101, 1104, 6 L.Ed.2d 393.

61

The provisions enacted by the Ohio Legislature fully meet that standard. 5

62

The laws of Ohio classify political parties, for purposes of access to that State's
ballot, according to size and strength.6 Those that timely demonstrate
widespread support in the State may submit a slate of presidential electors to
Ohio's voters, while those that neither have participated in past elections nor
can show the support of 15% of the voting public 90 days before a primary
election may not.7 The appellants claim that these provisions discriminate
against them. They assert that although Ohio may establish 'reasonable'
qualifying standards so that ballots do not become unwieldy, the strength of the
American Independent Party is so substantial that no such requirement could
possibly suffice to keep the Party's candidates off the presidential ballot. Ohio's
requirements are so high, they contend, that the legislative purpose behind
those requirements can be only to keep new partieseven those that, like the
American Independent Party, have gained considerably more than 'splinter'
supportoff the ballot. And such requirements, they conclude, thus deny
persons in their position equal protection of the laws.

63

Ohio for its part concedes that the legislative objective underlying the statutes
in question is to prevent the appearance on its ballot of slates of presidential
electors whose substantial party support has not been timely demonstrated. That
the basic classification drawn by the provisions is not 'irrelevant to the
achievement of the State's objective'the traditional standard for judging the
validity of a legislative classification under the Equal Protection Clauseis
clear. The Court seems to concede as much, but nonetheless holds that the Ohio
provisions are invalida result which may rest in part, I believe, upon possible
doubts regarding the permissibility or the legislative objective itself. The
propriety of that objective is, then, a critical issue for determination.

III.
64

I can discern no basis for the position that Ohio's objective is in any way an
illegitimate one. Surely a State may justifiably assert an interest in seeing that
its presidential electors vote for the candidate best able to draw the support of a

majority of voters within the State. By preventing parties that have not
demonstrated timely and widespread support from gaining places on its ballot,
Ohio's provisions tend to guard against the possibility that small-party
candidates will draw enough support to prevent either of the major contenders
from obtaining an absolute majority of votesand against the consequent
possibility that election may be secured by candidates who gain a plurality but
who are, vis-a -vis their principal opponents, preferred by less than half of
those voting.8 Surely the attainment of these objectives is well within the scope
of a State's authority under our Constitution. One may perhaps disagree with
the political theory on which the objectives are based, but it is inconceivable to
me that the Constitution imposes on the States a political philosophy under
which they must be satisfied to award election on the basis of a plurality rather
than a majority vote.
65

In pursuing this interest Ohio has, at the same time, not completely prevented
new parties from gaining access to that State's ballot. It has authorized ballot
position for parties that can demonstrate by petition the support of 15% of the
voting public 90 days before a primary election is to be held. My Brethren
seem to suggest that the percentage figure is set too high, and the date too early.
But I cannot join in this kind of second-guessing. While necessarily arbitrary,
Ohio's standards can only be taken to represent reasonable attempts at
accommodating the conflicting interests involved.9

66

Although Ohio's provisions do not freeze the Republican and Democratic

Parties into the State's election structure by specific reference to those parties, it
is true that established parties, once they become participants in the electoral
process, continue to enjoy ballot position so long as they have polled 10% of
the vote in the most recent Ohio gubernatorial election. It is suggested that the
disparity between this figure and the 15% requirement applicable to new parties
is invidiously discriminatory. But I cannot accept the theory that Ohio is
constitutionally compelled to apply precisely the same numerical test in
determining whether established parties enjoy widespread support as it applies
in determining that question with regard to new parties.

67

It is by no means clear to me that as an abstract matter there are no differences

between parties that have long been on the ballot in a State and those that have
not, such as might justify disparate standards for determining in those two
classes of cases when widespread support, required for ballot position, has been
demonstrated. In any event, I cannot conclude that the disparity involved here
denies equal protection of the laws. The difference in figures is a difference
between the requirements for getting on and staying on the ballot. It seems to
me to be well within the State's powers to set somewhat different standards for

those two requirements, so long as it applies them uniformly to all political

parties. The only remaining argument would seem to be that the Republican
and Democratic Parties never had to meet the 15% requirement: they were on
the ballot in Ohio at the time the statutory scheme was enacted, and so have had
only to make certain they remain on by meeting the 10% standard. But the Ohio
Legislature could well have taken notice at the time the provisions were
enacted that the parties which had polled over 10% of the vote in the most
recent gubernatorial electionthe Republican and Democratic Partieshad
both demonstrated strength far beyond the 15% figure specified for ballot entry
by new parties. It seems to me totally unrealistic, therefore, to conclude that
this minor disparity in standards cannot be justified by 'any state of facts (that)
reasonably may be conceived.' McGowan v. State of Maryland, supra, 366
U.S., at 426, 81 S.Ct., at 1105.
IV.
68

The Court's opinion appears to concede that the State's interest in attempting to
ensure that a minority of voters do not thwart the will of the majority is a
legitimate one, but summarily asserts that this legitimate interest cannot
constitutionally be vindicated. That assertion seems to echo the claim of my
concurring Brethrena claim not made by the appellantsthat Ohio's
statutory requirements in some way infringe upon First Amendment rights. I
cannot agree.

69

As the language of Art. II, 1, and a great deal of history under that section
make clear, there is no constitutional right to vote for presidential electors.10 I
take it, therefore, that the First Amendment theory of my Brethren rests on the
view that, despite the legitimacy of the objective underlying Ohio's laws, those
laws nonetheless have the effect of stifling the activity of persons who disagree
with the major political parties now in existence. The concurring opinions cite a
series of decisions protecting what has been termed the First Amendment right
of association. NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405;
Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480;
NAACP v. State of Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2
L.Ed.2d 1488; Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430;
De Jonge v. State of Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278. In my
view, however, the principles on which those decisions were based do not call
for today's result.

70

In Thomas v. Collins and De Jonge v. State of Oregon, supra, the very design
of the statutes in question was to prevent persons from freely meeting together
to advance political or social views. Ohio's laws certainly are not of that nature.

In the other three cases cited, all involving the activities of the National
Association for the Advancement of Colored People, the statutes challenged
were not on their face calculated to affect associational rights. We were able to
determine with a good deal of certainty in those cases, however, (1) that
application of the statutes to the NAACP would clearly result in a considerable
impairment of those rights, and (2) that the interest said to underlie the statutes
was insubstantial in the contexts presented. I believe that those conclusions
should as a general matter be regarded as prerequisites to any holding that laws
such as those involved here, which serve a legitimate state interest but are said
to have some impact on First Amendment activity, are invalid. Cf. United
States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672.
71

In NAACP v. State of Alabama ex rel. Patterson, supra, for instance, where the
NAACP was ordered in accord with state law to disclose its membership lists,
we outlined the issues as follows:

72

'We think that the production order, in the respects here drawn in question,
must be regarded as entailing the likelihood of a substantial restraint upon the
exercise by petitioner's members of their right to freedom of association.
Petitioner has made an uncontroverted showing that on past occasions
revelation of the identity of its rank-and-file members has exposed these
members to economic reprisal, loss of employment, threat of physical coercion,
and other manifestations of public, hostility. Under these circumstances, we
think it apparent that compelled disclosure of petitioner's Alabama membership
is likely to affect adversely the ability of petitioner and its members to pursue
their collective effort to foster beliefs which they admittedly have the right to
advocate, in that it may induce members to withdraw from the Association and
dissuade others from joining it because of fear of exposure of their beliefs
shown through their associations and of the consequences of this exposure.

73

'We turn to the final question whether Alabama has demonstrated an interest in
obtaining the disclosures it seeks from petitioner which is sufficient to justify
the deterrent effect which we have concluded these disclosures may well have
on the free exercise by petitioner's members of their constitutionally protected
right of association. * * *

74

'* * * The exclusive purpose (of the state authorities) was to determine whether
petitioner was conducting intrastate business in violation of the Alabama
foreign corporation registration statute, and the membership lists were expected
to help resolve this question. The issues in the litigation commenced by
Alabama by its bill in equity were whether the character of petitioner and its
activities in Alabama had been such as to make petitioner subject to the

registration statute, and whether the extent of petitioner's activities without

qualifying suggested its permanent ouster from the State. Without intimating
the slightest view upon the merits of these issues, we are unable to perceive that
the disclosure of the names of petitioner's rank-and-file members has a
substantial bearing on either of them. * * *' 357 U.S., at 462464, 78 S.Ct., at
11721173.
75

And in Bates v. City of Little Rock, supra, where an almost identical

requirement was involved, we stated:

76

'On this record it sufficiently appears that compulsory disclosure of the

membership lists of the local branches of the National Association for the
Advancement of Colored People would work a significant interference with the
freedom of association of their members. There was substantial uncontroverted
evidence that public identification of persons in the community as members of
the organizations had been followed by harassment and threats of bodily harm.
There was also evidence that fear of community hostitlity and economic
reprisals that would follow public disclosure of the membership lists had
discouraged new members from joining the organizations and induced former
members to withdraw. This repressive effect, while in part the result of private
attitudes and pressures, was brought to bear only after the exercise of
governmental power had threatened to force disclosure of the members' names.
* * * Thus, the threat of substantial government encroachment upon important
and traditional aspects of individual freedom is neither speculative nor remote.

77

'Decision in this case must finally turn, therefore, on whether the cities as
instrumentalities of the State have demonstrated so cogent an interest in
obtaining and making public the membership lists of these organizations as to
justify the substantial abridgment of associational freedom which such
disclosures will effect. * * * ln*

78

'In this record we can find no relevant correlation between the power of the
municipalities to impose occupational license taxes and the compulsory
disclosure and publication of the membership lists of the local branches of the
National Association for the Advancement of Colored People. * * *' 361 U.S.,
at 523525, 80 S.Ct., at 417418. 11

79

Here, there certainly is no comparable showing that Ohio's ballot requirements

have any substantial impact on the attempts of political dissidents to organize
effectively. Such persons are entirely free to assemble, speak, write, and
proselytize as they see fit. They are free either to attempt to modify the

character of the established major parties or to go their own way and set up
separate political organizations. And if they can timely demonstrate that they
have substantial support within the State according to Ohio's reasonable
standards for deciding that questionthey may secure ballot position for the
candidates they support. Ohio has restricted only their ability to secure ballot
position without demonstrating that support. To me the conclusion that that
single disability in any way significantly impairs their First Amendment rights
is sheer speculation. As my Brethern's surveys of ballot requirements in the
various States suggest, the present two-party system in this country is the
product of social and political forces rather than of legal restrictions on minority
parties. This Court has been shown neither that in States with minimal ballot
restrictions third parties have flourished, nor that in States with more difficult
requirements they are moribund. Mere speculation ought not to suffice to strike
down a State's duly enacted laws.
80

Nor, I think, can we with any confidence conclude that Ohio's interest in
attempting to ensure that the will of the majority shall prevail is an insubstantial
one. It requires more insensitivity to constitutional principles of federalism than
I possess to tell Ohio that that interest is, according to this Court's scale of
values, somehow unworthy of implementation.12 I cannot conclude, therefore,
that First Amendment principles call for the result reached today.

V.
81

It is thought by a great many people that the entire electoral college system of
presidential selection set up by the Constitution is an anachronism in need of
major overhaul.13 As a citizen, I happen to share that view. But this Court must
follow the Constitution as it is written, and Art. II, 1, vests in the States the
broad discretion to select their presidential electors as they see fit. The method
Ohio has chosen may be unwise as a matter of policy, but I cannot agree that it
violates the Constitution.14

82

Mr. Justice WHITE, dissenting in No. 543 and concurring in No. 544.

83

I agree with much of what by Brother STEWART says in his dissenting

opinion in No. 543. In my view, neither the Due Process Clause nor the Equal
Protection Clause of the Fourteenth Amendment prohibits Ohio from requiring
that the appointment of presidential electors be carried out through the political
party process. The Court does not hold that Ohio must accord ballot position to
those who are unwilling to work through the framework of an established or
nascent political party, nor do I understand appellants to make this contention.
In this connection, there is no suggestion in the majority opinion that Ohio

merely by requiring potential candidates to participate in a primary, has acted

unreasonably. Indeed, this requirement provides the opportunity for the
presentation and winnowing out of candidates which is surely a legitimate
objective of state policy. Nor is it held that Ohio's requirement, pursuant to this
objective, that parties must show their base of popular support by obtaining the
signatures of 15% of Ohio's gubernatorial voters is itself unreasonable.
84

In the face of such requirements, which neither alone nor in combination are
unconstitutional, I do not understand how the American Independent Party may
be ordered on the ballot over the objections of the State. The Independent Party
has not complied with the provision that it show a sufficient base of popular
support in time for participation in a primary. Indeed, the Party made no effort
whatsoever to comply with these provisions. It claims it secured the necessary
number of signatures but admits it wholly ignored the requirement that the
petitions be filed prior to the primary election date. Had it filed them, and been
denied participation in the primary or the election for failure to meet some
other requirement, the case would be very different. But it did not even
commence judicial challenge of the signature requirement, not to mention
gathering signatures, in time to participate in the primary. The Independent
Party is in no position to complain that it would have been impossible for its
members to gather the necessary signatureswhich they were in fact able to
assemble subsequentlyor that it might in its progress toward ballot position
have encountered some later obstacle.

85

That other Ohio provisions related to later phases of the election process might
have imposed unconstitutional barriers to ballot position is no reason to excuse
the Independent Party from complying with those preconditions which the State
may validly impose. Why a majority of the Court insists on holding the primary
petition requirement impermissible, not on its own demerits, but because it
appears in the statute books with more questionable provisions is the major
mystery of the majority position. Neither the Independent nor the Socialist
Labor Party is entitled to relief in this Court.

86

Mr. Chief Justice WARREN, dissenting.

87

We have had but seven days to consider the important constitutional questions
presented by these cases. The rationale of the opinion of the Court, based both
on the Equal Protection Clause and the First Amendment guarantee of freedom
of association, will apply to all elections, national, state, and local. Already,
litigants from Alabama, California, Illinois, and Virginia have requested similar
relief virtually on the eve of the 1968 presidential election. I think it fair to say
that the ramifications of our decision today may be comparable to those of

Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), a case we
deliberated for nearly a year.1 Appellants' belated requests for extraordinary
relief have compelled all members of this Court to decide cases of this
magnitude without the unhurried deliberation which is essential to the
formulation of sound constitutional principles.
I.
88

I cannot agree that the State of Ohio should be compelled to place the
candidates of the American Independent Party on the ballot for the impending
presidential election. Nor can I draw a distinction between this Party and the
Socialist Labor Party. Both suits were filed in July of this year, and both were
decided on August 29, 1968. The following week the American Independent
Party petitioned the Circuit Justice for its Circuit for provisional relief, which
was granted on September 10. The Socialist Labor Party sought similar relief
only three days after the September 10 order was issued. Mr. Justice Stewart
granted provisional relief to one, but denied it to the other. No Ohio statutory
deadline compelled that result, and presumably Ohio could have complied with
an order granting the same relief to both Parties.2 Both parties should be treated
alike; otherwise, we are bowing to a show of strength rather than applying
constitutional principles.

89

Appellants have invoked the equity jurisdiction of the federal courts. Placed in
this context, the litigation before us presents an issue not treated by the opinion
of the Court: did the District Court abuse its discretion in denying the
extraordinary equitable relief requested by appellants?3 A review of the facts
before the District Court convinces me that it did not, and therefore the
emergency relief sought by appellants should be denied.

90

The Socialist Labor Party has been an organized political party in Ohio since
the end of the 19th century, and although it has not achieved ballot position
since the enactment in 1948 of the laws it challenges,4 not until July 2, 1968,
did it press its claims for equitable relief. Similarly, the supporters of George
C. Wallace did not institute their action until July 29, 1968, although early in
1967 Governor Wallace had expressed interest in the Presidency,5 and, in the
spring of that year, he voiced concern for the restrictive nature of Ohio's
qualifying laws.6

91

Nevertheless, neither the American Independent Party nor the Socialist Labor
Party made an effort to comply with Ohio's election laws. Nor has either timely
invoked the jurisdiction of the courts. That both had the opportunity to do so
cannot be denied. Because the State of Ohio does not challenge the validity of

the signatures gathered by the American Independent Party, a majority of this

Court assumes they reflect the strength of that Party in Ohio. However, since
the signatures were not submitted to Ohio in timely compliance with the State's
election laws, they have never been verified; in fact, appellants in No. 543 did
not seek to file their signatures until over five months after the statutory filing
date.7
92

Despite these delays in instituting suit and the failure of either party to make an
effort to comply with any of Ohio's election laws, the District Court ordered
Ohio to provide for write-in voting. This relief guaranteed that each Ohio voter
would have the right to vote for the candidate of his choice, including the
candidates of these two Parties. At worst, therefore, denying appellants a
position on the ballot for the 1968 election prevented their candidates from
competing on a completely equal basis with the candidates of the two major
parties.

93

The imminence of the election, the Parties' failure to comply with Ohio law and
the District Court's grant of partial relief must be considered in conjunction
with the need to promote orderly federalstate relationships. Our reports are
replete with decisions concerning the nature of the relief to be afforded in these
sensitive areas, yet the opinion of the Court does not address itself to the
principles of these cases. In the analogous area of legislative apportionment, we
have often tolerated a temporary dilution of voting rights to protect the
legitimate interests of the States in fashioning their own election laws, see, e.g.,
Lucas v. Forty-Fourth General Assembly of State of Colorado, 377 U.S. 713,
739, 84 S.Ct. 1459, 1475, 12 L.Ed.2d 632 (1964); cf. Davis v. Mann, 377 U.S.
678, 692693, 84 S.Ct. 1441, 14481449, 12 L.Ed.2d 609 (1964); and in the
area of school desegregation we have demonstrated even greater deference to
the States. On occasion, we have even counseled abstention where First
Amendment rights have been allegedly infringed by state legislation. See
Harrison v. NAACP, 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152 (1959).

94

For example, in WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12
L.Ed.2d 568 (1964), holding unconstitutional the apportionment of New York's
Legislature, we stated that on remand the District Court 'acting under equitable
principles, must now determine whether, because of the imminence of that
election and in order to give the New York Legislature an opportunity to
fashion a constitutionally valid legislative apportionment plan, it would be
desirable to permit the 1964 election of legislators to be conducted pursuant to
the existing (unconstitutional) provisions, or whether under the circumstances
the effectuation of appellants' right to a properly weighted voice in the election
of state legislators should not be delayed beyond the 1964 election.'8 Id., at 655,

84 S.Ct., at 1429. (Emphasis added.) Green v. County School Board, 391 U.S.
430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), decided only last Term, provides an
even more striking example of our concern for the need to refrain from
usurping the authority of the States in areas traditionally entrusted to them.
Green reached this Court 13 years after Brown v. Board of Education, 349 U.S.
294, 75 S.Ct. 753, 99 L.Ed. 1083 (1965), required that schools be established
free of racial discrimination with 'all deliberate speed.' Although we held in
Green that the particular 'freedom-of-choice' plan adopted by the school board
did not pass constitutional muster, the case was remanded to the District Court
so that the school board could once again attempt to formulate a constitutional
plan.
95

The result achieved here is not compatible with recognized equitable principles,
nor is it compatible with our traditional concern, manifested in both the
reapportionment and school desegregation cases, for preserving the properly
exercised powers of the States in our federal system. Moreover, in none of these
analogous areas did we deal with an express constitutional delegation of power
to the States. That delegation is unequivocal here. U.S.Const., Art. II, 1.

96

The net result of the Court's action is that this Court is writing a new
presidential election law for the State of Ohio without giving the Legislature or
the courts of that State an opportunity to appraise their statutes in litigation9 or
to eliminate any constitutional defects prior to a decision by this Court. Given
both the lateness of the hour and the legitimate demands of federalism, the
District Court did not abuse its discretion in denying the extraordinary relief
appellants demanded.

II.
97

Although I believe that the court below properly exercised its discretionary
equitable powers, this litigation involves far more than a resolution of whether
either Party is entitled to ballot position for the 1968 election. Appellants'
request for declaratory relief, challenging the constitutionality of Ohio's system
of conducting presidential elections, has raised a question which may be fairly
classified as one of first impression:10 to what extent may a State, consistent
with equal protection and the First Amendment guarantee of freedom of
association, impose restrictions upon a candidate's desire to be placed upon the
ballot? As I have already stated, the principles which would of necessity evolve
from an answer to this question could not be confined either to the State of Ohio
or to presidential elections.

98

Both the opinion of this Court and that of the District Court leave unresolved

what restrictions, if any, a State can impose. Although both opinions treat the
Ohio statutes as a 'package,' giving neither Ohio nor the courts any guidance,
each contains intimations that a State can by reasonable regulation condition
ballot position upon at least three considerationsa substantial showing of
voter interest in the candidate seeking a place on the ballot, a requirement that
this interest be evidenced sometime prior to the election, and a party structure
demonstrating some degree of political organization. With each of these
propositions I can agree. I do not believe, however, as does Mr. Justice
STEWART, that the Equal Protection Clause has only attenuated applicability
to the system by which a State seeks to control the selection of presidential
electors.
99

Whatever may be the applicable constitutional principles, appellants and the

State of Ohio are entitled to know whether any of the various provisions
attacked in this litigation do comport with constitutional standards. As
demonstrated by Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d
444 (1967),11 this matter should be first resolved by the court below. Given the
magnitude of the questions presented and the need for unhurried deliberation, I
would dispose of appellants' request for declaratory relief in a manner
consistent with Zwickler by a remand to the District Court for a clearer
determination of the serious constitutional questions raised in these cases.

100 I must therefore dissent from the failure of the Court's opinion to explore or
dispose adequately of the declaratory judgment actions, as well as from the
grant of extraordinary relief in No. 543.

Judge Kinneary describes, in his dissenting opinion below, the legal obstacles
placed before a would-be third party even after the 15% signature requirement
has been fulfilled:
'First, at the primary election, the new party, or any political party, is required
to elect a state central committee consisting of two members from each
congressional district and county central committees for each county in Ohio.
(Ohio Rev.Code 3517.023517.04.) Second, at the primary election the
new party must elect delegates and alternates to a national convention. (Ohio
Rev.Code 3505.10.) Since Section 3513.19.1, Ohio Rev.Code, prohibits a
candidate from seeking the office of delegate to the national convention or
committeeman if he voted as a member of a different party at a primary
election in the preceding four year period, the new party would be required to
have over twelve hundred members who had not previously voted in another
party's primary, and who would be willing to serve as committeemen and

delegates. Third, the candidates for nomination in the primary would have to
file petitions signed by qualified electors. (Ohio Rev.Code 3513.05.) The
term 'qualified electors' is not adequately defined in the Ohio Revised Code (
3501.01(H)), but a related section ( 3513.19), provides that a qualified elector
at a primary election of a political party is one who, (1) voted for a majority of
that party's candidates at the last election, or, (2) has never voted in any
election before. Since neither of the political party plaintiffs had any candidates
at the last preceding regular state election, they would, of necessity, have to
seek out members who had never voted before to sign the nominating petitions,
and it would be only these persons who could vote in the primary election of
the new party.'
2

Art. I, 8, cl. 1.

Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968);
Grosso v. United States, 390 U.S. 62, 88 S.Ct. 716, 19 L.Ed.2d 906 (1968).

Skinner v. State of Oklahoma ex rel. Williamson, 316 U.S. 535, 539541, 62

S.Ct. 1110, 11121113, 86 L.Ed. 1655 (1942); Cox v. State of Louisiana, 379
U.S. 536, 557, 85 S.Ct. 453, 465, 13 L.Ed.2d 471 (1965); Yick Wo v. Hopkins,
118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); Brown v. Board of Education,
347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); Loving v. Com. of Virginia,
388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967).

See, e.g., Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675
(1965); Skinner v. State of Oklahoma ex rel. Williamson, supra.

United Mine Workers of America, Dist. 12 v. Illinois State Bar Assn., 389 U.S.
217, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967); NAACP v. Button, 371 U.S. 415, 83
S.Ct. 328, 9 L.Ed.2d 405 (1963); NAACP v. State of Alabama ex rel. Patterson,
357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958).

See New York Times Co. v. Sullivan, 376 U.S. 254, 276277, 84 S.Ct. 710,
723724, 11 L.Ed.2d 686 (1964), and cases there cited.

Wesberry v. Sanders, supra, 376 U.S. at 17, 84 S.Ct., at 535. See also
Carrington v. Rash, supra.

Forty-two States require third parties to obtain the signatures of only 1% or less
of the electorate in order to appear on the ballot. It appears that no significant
problem has arisen in these States which have relatively lenient requirements
for obtaining ballot position.

10

Cf. United Mine Workers of America, Dist. 12 v. Illinois State Bar Assn.,

supra, 389 U.S., at 224, 88 S.Ct., at 357.

1

Ohio Rev.Code 3505.03 (1930 Repl.Vol.).

Independent candidacy in Ohio is limited to municipal offices, Ohio Rev.Code

3513.2513513.252; county offices, Ohio Rev.Code 3513.256; state
office and federal office, excluding President, Ohio Rev.Code 3513.257
3513.258.

Ohio Rev.Code 3505.10, 3513.053513.191, 3517.01 3517.04.

A candidate for President must first formulate a party by gathering signatures,

Ohio Rev.Code 3517.01, which must, in turn, be presented in time for the
party to participate in the state primary. Ohio Rev.Code 3513.256
3513.262.

Ohio Rev.Code 3513.258.

Ohio Rev.Code 3505.10.

Ohio Rev.Code 3517.023517.04.

Ohio Rev.Code 3505.10.

Ohio Rev.Code 3513.191.

10

Ohio Rev.Code 3513.05.

11

Ohio Rev.Code 3513.11.

12

Ohion Rev.Code 3513.12.

13

Bates v. City of Little Rock, 361 U.S. 516, 528, 80 S.Ct. 412, 419, 4 L.Ed.2d
480 (Black and Douglas, JJ., concurring); Smith v. People of State of
California, 361 U.S. 147, 157, 80 S.Ct. 215, 220, 4 L.Ed.2d 205 (Black, J.,
concurring).

The fact that appellants have chosen to pitch their argument throughout on the
Equal Protection Clause does not, of course, limit us in reaching our decision
here.

At no stage in the complex process by which a President is chosen is the 'one

man, one vote' principle of Reynolds v. Sims followed. The constitutional
decision to grant each State at least three Electors, regardless of population, was
a necessary part of the effort to gain the consent of the small States, as was the

provision that when the choice of the President fell to the House, each state
delegation would cast but one vote. See N. Peirce, The People's President 43
50 (1968); L. Wilmerding, The Electoral College 1722 (1958).
3

Federalist Papers, No. 68 (Alexander Hamilton) (H. Lodge ed. 1908);

American Bar Association, Electing The President 15 (1967); Wilmerding,
supra, n. 2, at 10; R. MacBride, The American Electoral College 1617
(1953).

The large number of leaders, of varying ideological convictions, who favored

popular election included Hamilton, Madison, James Wilson, John Dickinson,
Rufus King, Daniel Carroll, and Abraham Baldwin. The opponents of popular
selection included Gerry, Ellsworth, Luther Martin, and Roger Sherman. See
Chief Justice Fuller's illuminating opinion in McPherson v. Blacker, 146 U.S.
1, 28, 13 S.Ct. 3, 8, 36 L.Ed. 869 (1892). See also Wilmerding, supra, n. 2, at
1314.

The story of the compromise is to be found in Wilmerding, supra, n. 2, at 17

22. The Convention did not, however, direct its attention to the precise meaning
of the clause that is the subject of consideration here. See Peirce, supra, n. 2, at
45.

Electors were chosen by the legislature itself, by the general electorate on an atlarge and district-by-district basis, partly by the legislature and partly by the
people, by the legislature from a list of candidates selected by the people, and
in other ways. See McPherson v. Blacker, supra, 146 U.S. 2833, 13 S.Ct. 8
10; Wilmerding, supra, n. 2, c. 3; Peirce, supra, n. 2, at 309.

Nor does the leading case in this area, McPherson v. Blacker, supra, support
such a claim. There the plaintiffs-in-error had challenged Michigan's attempt to
permit its voters to select Electors on a district-by-district, rather than an
atlarge, basis. The Court held that, given the early history, see n. 6, supra, the
States have the plenary power to alter the method by which Electors are
selected so long as the method cannot be attacked on Fourteenth Amendment
grounds. Pursuing this analysis, the unanimous Court found the district-bydistrict approach free of any Fourteenth Amendment defect, 146 U.S., at 37
40, 13 S.Ct., at 1113. I can perceive no reason to doubt the continuing
validity of this holding.

My Brother STEWART is, of course, quite right in pointing out that the
presence of third parties may on occasion result in the election of the major
candidate who is in reality less preferred by the majority of the voters. It seems
clear to me, however, that many constitutional electoral structures could be
designed which would accommodate this valid state interest, without depriving

other political organizations of the right to participate effectively in the political

process. A runoff election may be mandated if no party gains a majority, or the
decision could be left to the State Legislature in such a case, compare Fortson
v. Morris, 385 U.S. 231, 87 S.Ct. 446, 17 L.Ed.2d 330 (1966). Alternatively,
the voter could be given the right, at the general election, to indicate both his
first and his second choice for the Presidencyif no candidate received a
majority of first-choice votes, the second-choice votes could then be
considered. Finally, Electors could be chosen on a district-by-district rather than
an at-large basis, thereby apportioning the electoral vote in a way more nearly
approximating the popular vote. See McPherson v. Blacker, supra, and text, at
n. 4, supra. I would conclude that, with the substantial variety of less restrictive
alternatives that are available, compare NAACP v. Alabama ex rel. Flowers,
377 U.S. 288, 307-308, 84 S.Ct. 1302, 13131314, 12 L.Ed.2d 325 (1964);
Saia v. People of State of New York, 334 U.S. 558, 562, 68 S.Ct. 1148, 1150,
92 L.Ed. 1574 (1948); Martin v. City of Struthers, 319 U.S. 141, 146149, 63
S.Ct. 862, 864866, 87 L.Ed. 1313 (1943); Thornhill v. State of Alabama, 310
U.S. 88, 96, 60 S.Ct. 736, 741, 84 L.Ed. 1093 (1940); Schneider v. State of
New Jersey, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939), this interest
cannot support Ohio's 15% requirement.
9

Ohio's present statutory scheme is a product of legislative action taken between

1948 and 1952. Before that time, independent candidates had been granted a
place on the ballot if they could gather the signatures of registered voters in the
number of 1% of those voting at the preceding gubernatorial election and
present their petitions 60 days before the general election. The State's
experience under this unexacting regime is instructive. Voting statistics
compiled by Ohio's Secretary of State reveal that since 1900 no more than
seven parties have appeared on the ballot to compete for a major statewide or
national office. And even this number was not attained after 1908. During the
last 10 years of the old regime, there are only two third-party candidates of
record. The State took effective action only after Electors pledged to Henry A.
Wallace gained some 30,000 votes out of the 3,000,000 cast in 1948. Since
Harry S. Truman carried the State by some 7,000 votes, the Wallace vote might
well have been decisive if it had increased marginally.

10

The other 49 States may be grouped in the following categories with regard to
the size of the barriers they raise against third-party candidacies:

U.S.Const., Art. II, 1. This provision represented a compromise among

several conflicting views expressed at the Constitutional Convention regarding
the most salutary method for choosing a President, most of which favored some
method other than popular election. See McPherson v. Blacker, 146 U.S. 1, 28,
13 S.Ct. 3, 8, 36 L.Ed. 869.

U.S.Const. Amend. 12. The Twelfth Amendment also specifies the procedures
for selecting a President and Vice President in the event that no candidate
receives a majority of votes in the electoral college.

See McPherson v. Blacker, supra, at 35, 13 S.Ct. at 10.

'(V)arious modes of choosing the electors were pursued, as, by the legislature
itself on joint ballot; by the legislature through a concurrent vote of the two
houses; by vote of the people for a general ticket; by vote of the people in
districts; by choice partly by the people voting in districts and partly by the
legislature; by choice by the legislature from candidates voted for by the people
in districts; and in other ways * * *.' McPherson v. Blacker, supra, at 29, 13
S.Ct., at 8.
For a fuller description of the diverse methods pursued by the States in
appointing their electors under Art. II, 1, during this Courtry's first century of
constitutional experience, see id., at 2635, 13 S.Ct., at 710.

It is clear that this Court's decisions in such cases as Baker v. Carr, 369 U.S.
186, 82 S.Ct. 691, 7 L.Ed.2d 663; Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801,
9 L.Ed.2d 821, and Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d
506, all involving the direct popular election of candidates to state or federal
office, do not control the issues in this case. Indeed, no opinion today suggests
that those cases are apposite. They sustained the right of a voter to cast a ballot
whose numerical weight is the equal of that of any other vote cast within the
jurisdiction in question. No claim is made in this case that Ohio has in any way
violated that right.

The appellants plainly do not object to working through or voting for candidates
of partisan political organizations, and I do not understand them to claim
discrimination on the basis of Ohio's failure to allow access to its presidential
ballot via an 'independent nominating petition.'

Appellants have cited us to a complex group of Ohio statutes which they say are
relevant to the participation of political parties in that State's presidential
elections. See Ohio Rev.Code 3505.10, 3513.05, 3513.11, 3513.19,
3513.191, 3517.01 3517.04. It is not entirely clear that all of those provisions
are applicable to parties participating in the electoral process for the first time.
But we need not examine that question since in any event the appellants clearly
failed to file with the Secretary of State of Ohio on February 7 of this year, 90
days before the State's primary election, a petition signed by a number of voters
equal to 15% of the number participating in Ohio's last gubernatorial election.
Ohio Rev.Code 3505.10, 3517.01.

This interest, which several States have chosen to protect in the context of state
and local primary contests by providing for runoff elections, may be illustrated
by a hypothetical example. Assume a State in which a dissident faction of one
of the two major partiesparty Abecomes dissatisfied with that party's
nominees and sets itself up as a 'third party'party Cputting forward
candidates more to its liking. Still, the members of party C much prefer the
candidates of party A to those of party B. A situation is possible in which party
B's candidates poll, for example, 46% of the vote, party A's candidates 44%,
and party C's candidates 10%. Party B's candidates would in such a situation be
elected by plurality vote. In an election involving only the candidates of parties
A and B, however, those persons preferring party C's candidates might well
have voted overwhelmingly for party A's, thus giving party A's candidates a
substantial majority victory.

The date specified, for instance, is related to Ohio's requirement that all
political parties hold primary elections another provision that is, it seems to me,
well within the State's power to enact.

10

Cf. Minor v. Happersett, 21 Wall. 162, 178, 22 L.Ed. 627:

'(T)he Constitution of the United States does not confer the right of suffrage
upon any one. * * *'

11

The NAACP cases, furthermore, held invalid only the application of the state
laws in question to the parties involved. Here, however, Ohio is told, as I read
the opinion of the Court and the concurring opinions, that it cannot in any
circumstances validly enforce its ballot requirements.

12

My Brother HARLAN suggests that Ohio's interest may be protected in 'less

restrictive' ways. In light of the views I have stated above, I do not see why
Ohio should be compelled to utilize one method for achieving its ends rather
than another. In any event, each of the methods mentioned by Mr. Justice
HARLAN appears to me to entail consequences which arguably would frustrate
other legitimate state interests. Nor do all of them serve as effectively to
promote the interest in question here as does the statutory scheme the Ohio
Legislature has in fact enacted. I do not think problems such as those raised in
this case can be solved by means of facile and unelaborated suggestions of 'less
restrictive alternatives'; issues of legislative policy are too complex for such
easy answers to be satisfactory.

13

Similar suggestions were being made as early as 1804, at the time of the
adoption of the Twelfth Amendment. See McPherson v. Blacker, 146 U.S. 1, at
33, 13 S.Ct. 3, at 10.

14

For the reasons stated in this opinion, and the further reasons stated in Part IV
of the opinion of the Court, I agree with the Court's denial of equitable relief to
the appellants in No. 544, the Socialist Labor Party case.

Baker was originally argued on April 1920, 1961. On May 1, 1961, it was set
for reargument and was reargued on October 9, 1961. Our decision was not
announced until March 26, 1962, over 11 months after the original argument.

Mr. Justice Stewart based his denial of the Socialist Labor Party's request for
provisional relief upon the following considerations: 'the late date on which this
motion was presented, the action already taken by the Ohio authorities, the
relief already granted the appellants by the district court, and the fact that the
basic issues they present will be fully canvassed in the argument of the appeal
in Williams v. Rhodes * * *.' He did not suggest that the State of Ohio made
any representations that it could not comply with an order granting the Socialist
Labor Party the same relief already granted the American Independent Party.
I do not think any significance should be given to the fact that the interim relief
granted by Mr. Justice Stewart made it physically possible to place the
American Independent Party on the ballot. This relief, as explicitly recognized
by Mr. Justice Stewart, was granted solely to allow Ohio to comply with all
possible orders of this Court.

This is the traditional standard for review of the denial of equitable relief. See,
e.g., Brotherhood of Locomotive Engineers v. M.K.T. R. Co., 363 U.S.
528, 535, 80 S.Ct. 1326, 1330, 4 L.Ed.2d 1379 (1960); United Fuel Gas Co. v.
Public Serv. Comm'n, 278 U.S. 322, 326, 49 S.Ct. 157, 158, 73 L.Ed. 402
(1929).

Appellants' Complaint in No. 544, pp. 12.

New York Times, Jan. 26, 1967, p. 20, col. 3.

Commencing in late April 1967, Governor Wallace began a fourday tour of

selected northern States. At a press conference in Pittsburgh on April 27 he
stated that he expected to run for President in all 50 States and that it might be
necessary to institute suit in States where third parties had difficulty obtaining
ballot position. Aides to the Governor mentioned California and Ohio as States
in which difficulty might be encountered. New York Times, April 28, 1967, p.
28, col. 5.

The Ohio election laws require that petitions for a position on the Ohio ballot
be filed 90 days before the state primary. Ohio Rev.Code 3513.256
3513.262, 3517.01 (1960 Repl. Vol.). Appellants in No. 543 concede in their

brief that their deadline was February 7, 1968, yet they apparently did not
attempt to file their petitions until late in July. Appellants' Brief 86.
8

The prior history of Preisler v. Secretary of State, 279 F.Supp. 952

(D.C.W.D.Mo.1967), probable jurisdiction noted sub nom. Kirkpatrick v.
Preisler, 390 U.S. 939, 88 S.Ct. 1053, 19 L.Ed.2d 1129 (1968), aptly
demonstrates the deference we have paid legislative action in this area. On
January 4, 1965, the United States District Court for the Western District of
Missouri held that the 1961 Missouri Congressional Redistricting Act was
unconstitutional, but it refused to grant any additional relief 'until the
Legislature of the State of Missouri has once more had an opportunity to deal
with the problem * * *.' Preisler v. Secretary of State, 238 F.Supp. 187, 191
(D.C.W.D.Mo.1965). The Missouri General Assembly then enacted the 1965
Congressional Redistricting Act. On August 5, 1966, the District Court held
this new plan unconstitutional, but it nevertheless permitted the 1966 Missouri
congressional elections to be conducted under the void act. Preisler v. Secretary
of State, 257 F.Supp. 953 (D.C.W.D.Mo.1966). We affirmed on January 9,
1967. sub nom. Kirkpatrick v. Preisler, 385 U.S. 450, 87 S.Ct. 613, 17 L.Ed.2d
511. In 1967, the Missouri General Assembly made still another attempt to
enact a constitutional plan, but on December 29, 1967, this plan was also
invalidated. 279 F.Supp. 952.

Cf. Scott v. Germano, 381 U.S. 407, 409, 85 S.Ct. 1525, 1527, 14 L.Ed.2d 477
(1965), in which we stated that the 'power of the judiciary of a State to require
valid reapportionment or to formulate a valid redistricting plan has not only
been recognized by this Court but appropriate action by the States in such cases
has been specifically encouraged.'

10

MacDougall v. Green, 335 U.S. 281, 69 S.Ct. 1, 93 L.Ed. 3 (1948), did contest
the constitutionality of Illinois' system of nominating candidates representative
of new political parties. However, MacDougall was decided during the reign of
Colegrove v. Green, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432 (1946). Baker
v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), and its progeny have
substantially modified the constitutional matrix in this area. Fortson v. Morris,
385 U.S. 231, 87 S.Ct. 446, 17 L.Ed.2d 330 (1966), although concerning the
constitutionality of state election laws, involved consideration of a State's postelection procedure, not state requirements for initial ballot qualification.

11

'We hold that a federal district court has the duty to decide the appropriateness
and the merits of the declaratory request irrespective of its conclusion as to the
propriety of the issuance of the injunction.' 389 U.S., at 254, 88 S.Ct., at 399.