The opinion of the court was delivered by: GESELL
The District of Columbia Delegate Act, Public Law 91-405, Title II, was enacted by Congress on September 22, 1970, 84 Stat. 845. On November 6, 1970, Douglas E. Moore, a candidate for the office of Delegate, filed this action on behalf of himself and all other actual or potential independent candidates to declare unconstitutional and restrain the enforcement of certain provisions of the Act. Plaintiff's motion for a temporary restraining order was denied on November 10, 1970, and a three-judge court was convened pursuant to 28 U.S.C. §§ 2282, 2284. Julius Hobson and other plaintiffs in Civil Action No. 3340-70 have been granted a limited intervention on issues common to both suits. The issues were submitted for final decision on affidavits, briefs, and arguments of counsel on November 16. Sturgis Warner, Esquire, appeared as amicus at the request of the Court and supplied useful information concerning the legislative and executive background of the Act which is now a part of the record of these proceedings.
Plaintiff urges that the scheme of the Act is designed to foreclose independent candidates and favor the official representatives of major parties. This contention is based on three provisions of the Act (sections 203(i), 203(j) (1) and 203(l)) which it is claimed have a cumulative effect resulting in an invidious discrimination against independent candidates. Briefly stated, the complaint points to the fact that independent candidates must obtain more signatures for nomination than primary candidates; that they must solicit signatures later than primary candidates; and that they may be foreclosed from obtaining signatures from registered voters who have already signed a nomination petition for a primary candidate. Plaintiff invokes the Fifth and Fourteenth Amendments to the Constitution.
The first election of a non-voting Delegate to the House of Representatives to be held under the Act is scheduled for March 23, 1971, following primary elections to be held January 12, 1971. The mechanics of the scheduled Delegate election, as required by the Act under regulations of the Board of Elections promulgated pursuant thereto,
will be briefly outlined.
Persons wishing to stand in the general election for Delegate may enter a party primary or may proceed directly into the general election by nomination as an independent candidate. Primary candidates must file petitions 45 days before the primary and independent candidates 45 days before the general election. Nominations in the primary require 2,000 signatures of voters registered as members of the particular party holding the primary. Nominations directly for the general election require signatures of 2% of all registered voters, or 5,000 signatures, whichever is less; in the current election it appears that the number required will approximate 4,500 signatures. This figure is based on Corporation Counsel's representation at oral argument that 219,000 voters were registered as of November 16, 1970.
No signature obtained by primary candidates or independents more than 99 days from the primary or general election date, respectively, will be counted. Thus each candidate has 54 days in which to obtain the required signatures. Primary candidates may start October 21 and file December 14, while independent candidates may start December 30 and file by February 22. There is no restriction as to when a candidate, whether he stands in a primary or as an independent in the general election, may declare his candidacy and no time restriction on political activity. Indeed any candidate may solicit promises of signatures for his petition well before the permissible date for obtaining actual signatures.
Before turning to a discussion of the statutory provisions specifying the time within which signatures must be obtained and the number of signatures required, it will be appropriate to resolve an important question of statutory interpretation that underlies plaintiff's arguments. It is suggested that by reason of section 203(l), a large number of voters will be barred from signing nominating petitions of independent candidates because they will have already signed one of the 20 to 30 petitions now being circulated by primary candidates. Obviously if the Act invalidates the signature on a general election nominating petition of any voter who has previously signed a petition nominating a candidate in a primary, independent candidates would face special obstacles. Section 203(l) reads:
The signature of a registered voter on any petition filed with the Board and nominating a candidate for election in a primary or general election to any office shall not be counted if, after receipt of a timely challenge to such effect, the Board determines such voter also signed any other valid petition, filed earlier with the Board, and nominating the same or any other candidate for the same office in the same election.
Though the terms of this provision are somewhat ambiguous, the Court notes that the Board of Elections has agreed unanimously that
it must count the signature of a registered voter on a petition for a duly qualified candidate seeking to be nominated directly in the general election of March 23, 1971, without regard to whether such registered voter may have signed any other valid petition filed with the Board in the primary election of January 12, 1971.
(Letter of J.E. Bindeman, Chairman of the Board of Elections, Nov. 13, 1970; attached as Exhibit 3 to Defendants' Motion to Dismiss.)
The Board thus interprets the word "in the same election" to refer separately to the primary election and the general election, thus qualifying a voter to sign a petition in the primary and another petition in the general election. As this interpretation is reasonable and minimizes any possible constitutional infirmity, the Court declares the Board of Elections' interpretation of section 203(l) to be the proper interpretation of the section.
Turning to the other challenged provisions of the Act, it must be emphasized at the outset that the signature requirements of 2,000 for primary candidates and 2% or 5,000 for independents are not comparable. A candidate who gathers 2,000 signatures in the primary is not thereby entitled to run in the general election; he must first prevail in the primary.
Moreover, the signatures for primary candidates may be secured only from registered party members, who ...