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JENNESS ET AL. v. FORTSON

decided: June 21, 1971.

JENNESS ET AL
v.
FORTSON, SECRETARY OF STATE OF GEORGIA



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA.

Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and Douglas, Brennan, White, Marshall, and Blackmun, JJ., joined. Black and Harlan, JJ., concurred in the result.

Author: Stewart

[ 403 U.S. Page 432]

 MR. JUSTICE STEWART delivered the opinion of the Court.

Under Georgia law a candidate for elective public office who does not enter and win a political party's primary election can have his name printed on the ballot at the general election only if he has filed a nominating petition signed by at least 5% of the number of registered voters at the last general election for the office in question.*fn1 Georgia law also provides that a candidate for elective public office must pay a filing fee equal to 5% of the annual salary of the office he is seeking.*fn2 This litigation arose when the appellants, who were prospective candidates and registered voters,*fn3 filed a class action in the United States District Court for the Northern District of Georgia, attacking the constitutionality of these provisions of the Georgia Election Code, and seeking declaratory and injunctive relief.

A three-judge court was convened pursuant to 28 U. S. C. §§ 2281 and 2284. Thereafter the appellants filed a motion for summary judgment based upon a stipulation as to the relevant facts. The District Court granted the motion and entered an injunction with respect to the filing-fee requirement, holding that this requirement operates to deny equal protection of the laws as applied to those prospective candidates who cannot afford to pay the fees. No appeal was taken from that injunctive order. With respect to the nominating-petition

[ 403 U.S. Page 433]

     requirement, the District Court denied the motion and refused to enter an injunction, holding that this statutory provision is constitutionally valid.*fn4 From that refusal a direct appeal was brought here under 28 U. S. C. § 1253, and we noted probable jurisdiction.*fn5

The basic structure of the pertinent provisions of the Georgia Election Code is relatively uncomplicated. Any political organization whose candidate received 20% or more of the vote at the most recent gubernatorial or presidential election is a "political party."*fn6 Any other political organization is a "political body."*fn7 "Political parties" conduct primary elections, regulated in detail by state law, and only the name of the candidate for each office who wins this primary election is printed on the ballot at the subsequent general election, as his party's nominee for the office in question.*fn8 A nominee of a "political body" or an independent candidate, on the other hand, may have his name printed on the ballot at the general election by filing a nominating petition.*fn9 This petition must be signed by "a number of electors of not less than five per cent. of the total number of electors eligible to vote in the last election for the filling of the office the candidate is seeking . . . ."*fn10 The total time allowed for circulating a nominating petition is 180 days,*fn11 and it must be filed on the second Wednesday in

[ 403 U.S. Page 434]

     June, the same deadline that a candidate filing in a party primary must meet.*fn12

It is to be noted that these procedures relate only to the right to have the name of a candidate or the nominee of a "political body" printed on the ballot. There is no limitation whatever, procedural or substantive, on the right of a voter to write in on the ballot the name of the candidate of his choice and to have that write-in vote counted.

In this litigation the appellants have mounted their attack upon Georgia's nominating-petition requirement on two different but related constitutional fronts. First, they say that to require a nonparty candidate to secure the signatures of a certain number of voters before his name may be printed on the ballot is to abridge the freedoms of speech and association guaranteed to that candidate and his supporters by the First and Fourteenth Amendments. Secondly, they say that when Georgia requires a nonparty candidate to secure the signatures of 5% of the voters before printing his name on the ballot, yet prints the names of those candidates who have won nomination in party primaries, it violates the Fourteenth Amendment by denying the nonparty candidate the equal protection of the laws. Since both arguments are primarily based upon this Court's decision in Williams v. Rhodes, 393 U.S. 23, it becomes necessary to examine that case in some detail.

In the Williams case the Court was confronted with a state electoral structure that favored "two particular parties -- the Republicans and the Democrats -- and in effect tend[ed] to give them a complete monopoly." Id., at 32. The Court held unconstitutional the ...


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