number, while signatures for the general election may be obtained from the electorate at large.
The 2% or 5,000 signature provision must therefore be examined on its own merits to determine whether it is manifestly discriminatory against independent nominations when contrasted with the entire process of party nomination by the major parties. As of August 31, 1970, there were approximately 155,000 Democrats and 31,000 Republicans registered. Thus the nominating petitions of primary candidates must contain signatures from approximately 1.25% of the Democrats or 6% of the Republicans, percentages that bracket the 2% required for independent candidates. Moreover, experience in the District in the few elections that have been held demonstrates that a 2% requirement involving something between 4,000 and 5,000 signatures is not unrealistic. In the 1968 Presidential election, with fewer voters registered, two minor parties were able to get 6,500 and 8,000 signatures, respectively, in spite of a late start, limited campaigning, and the obvious dominance of major parties in a Presidential election. It is also significant that in the first city-wide election for the Board of Education, held in 1968, there were nine candidates who qualified at large. In this election, 1,000 signatures were required apportioned 125 per ward over eight wards. The 2% requirement here in issue does not require signatures from every section of the city. Moreover, registrations have increased since 1968 and the special significance of the office of Delegate is certain to attract wider public interest and voter support. The 2% requirement was selected after consideration by the Congress which had before it the recommendations of the Department of Justice, Civil Rights Division, and others interested in establishing a genuine franchise for the District. This requirement is a substantial reduction from the 5% provision governing independent nominations in Presidential elections, and gives no support to plaintiff's claim that the legislation was engineered blatantly to favor the major parties.
Plaintiff places primary reliance on Williams v. Rhodes, 393 U.S. 23, 89 S. Ct. 5, 21 L. Ed. 2d 24 (1968), in which Ohio's restrictions on third-party access to the ballot were invalidated as offensive to the Fourteenth Amendment. The Ohio statute required a nominating petition signed by 15% of registered voters, a party primary, a party convention apportioned according to party strength in various parts of the state, and endorsements by voters who had failed to vote for any other party in the preceding election. The Court did not invalidate any of these requirements standing alone, but found that "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 under the Equal Protection Clause." 393 U.S. at 34, 89 S. Ct. at 12.
Where less stringent requirements have been imposed, they have been uniformly upheld in the absence of distributional restrictions which offend the principle of one man, one vote. In Lyons v. Davoren, 402 F.2d 890 (1st Cir. 1968), cert denied, 393 U.S. 1081, 89 S. Ct. 861, 21 L. Ed. 2d 774 (1969), the court found insubstantial a challenge to a Massachusetts law requiring independent candidates for Congress to file petitions bearing signatures equal to 3% of the gubernatorial vote in their respective districts. In Georgia Socialist Workers Party v. Fortson, 315 F. Supp. 1035 (N.D. Ga. 1970), a three-judge court upheld Georgia's requirement that a third-party candidate secure the signatures of 5% of the eligible voters in the last preceding election.
There is no need for any extended discussion of the related attack on the 99-day provision. An identical provision will be found in the Act providing for election of the Board of Education. Obviously some time limit is required as a practical matter to assure that only qualified signatures are obtained and the petitions reflect current attitudes of voters. To allow plaintiff to secure signatures simultaneously with primary candidates, as he requests, would discriminate in his favor, since his petition must be filed later than those of primary candidates, and would lead to a most confused situation.
Congress properly recognized the need to limit candidates' access to the ballot through a process of petitions, primaries, and runoffs in order to minimize confusion and ensure that voters in the final election are presented only with candidates who have substantial support in the community. In fashioning such a process, Congress had to establish some balance between the competing goals of guaranteeing access to the ballot by qualified candidates, and limiting the field of candidates in the general election to a manageable number. The Court may not substitute its own judgment for that of Congress in determining the optimum resolution of these factors, but must inquire only whether the provisions of the Delegate Act place unreasonable restrictions on independent candidacies or arbitrarily discriminate against independents in favor of candidates from the major parties. For the reasons stated, it is apparent that the challenged provisions involve no such discrimination or restriction. Judgment shall be entered on the merits for defendants in accordance with this Opinion and the complaint accordingly is dismissed.
The foregoing constitutes the Court's findings of fact and conclusions of law and declaratory judgment. The Court's Order is attached.
This case having come on for hearing before a three-judge court, convened pursuant to 28 U.S.C. § 2284, and the Court having determined that Public Law 91-405 is not unconstitutional in any respect challenged by plaintiffs in view of the reasons and interpretations declared in an opinion filed this date, it is accordingly this 19th day of November, 1970,
Ordered that the plaintiff's motion for injunction be and it is hereby denied and that final judgment be and it is hereby entered for defendants.