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BARRY v. DISTRICT OF COLUMBIA BD. OF ELECTIONS

April 14, 1978

Marion BARRY et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS et al., Defendants, District of Columbia et al., Intervening Defendants



The opinion of the court was delivered by: GESELL

 GESELL, District Judge.

 Plaintiff Marion Barry is an at-large member of the Council of the District of Columbia seeking election in the fall as Mayor. Together with eight of his supporters, each a registered voter in one of the District's eight wards, he sues for a declaration and injunction voiding § 15(b) of the District of Columbia Election Act, as amended, D.C.Code § 1-1115(b) (Supp. IV 1977), on the grounds that it violates rights guaranteed them under the First and Fifth Amendments. Defendants are the District of Columbia Board of Elections and Ethics and two of its members. *fn1" Shortly after filing, intervention was sought by, and, following a hearing, granted to the District of Columbia and JePhunneh Lawrence, a candidate for an at-large Council seat in the next election. Both intervenors support the constitutionality of the provision challenged. Cross-motions for summary judgment and oppositions have been filed, and the parties are agreed as to all material facts. After carefully considering the papers and the oral arguments of all sides, the Court has determined that § 15(b) cannot stand. *fn2"

 
No person who is holding the office of Mayor, Delegate, Chairman or member of the Council, or member of the School Board shall, while holding such office, be eligible as a candidate for any other of such offices in any primary or general election, unless the term of the office which he so holds expires on or prior to the date on which he would be eligible, if elected in such primary or general election, to take the office with respect to which such election is held.

 D.C.Code § 1-1115(b) (Supp. IV 1977). This "resign to run" statute has been interpreted by the Board of Elections to require resignation before a nominating petition is filed by an elected official who seeks to run for a different office having a term not coincident with the office then held. Nominating petitions are due approximately four months before the election. Thus an elected official must resign four months before the election and, in effect, abandon his term midstream. *fn3" In contrast, an elected official whose term has only four months to run is not required to resign if he decides to seek another office. The Corporation Counsel supports this interpretation. The Court defers to the expertise of the Board and sustains its construction as the most reasonable. See Broadrick v. Oklahoma, 413 U.S. 601, 617-18, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973). *fn4"

 The hardship worked by the statute is well illustrated by plaintiff Barry's situation. Of the twenty-six elected positions in the District of Columbia, all but one carry four-year terms. (The Delegate to the United States House of Representatives is elected every two years.) By law, however, the terms do not coincide; they are "staggered" so as to ensure smooth transitions in administration. See D.C.Code §§ 1-291(a), 31-101(b)(2) (1970); id. §§ 1-141(b)(4),-161(b) (Supp. IV 1977). This year, for example, elections will be held for Mayor, Chairman of the Council, Delegate, and six Council members. The remaining seventeen positions, including Barry's, do not expire this year. Therefore, under § 15(b) in order to run for Mayor and for the Democratic nomination for that office, plaintiff will have to resign from office by July 5. Even if he is elected Mayor in the fall, he will have lost six months' salary as a Council member because of forced resignation. If he loses, he will have no opportunity to run, even for Council, until 1980. This phenomenon is immutable. Because both Barry's present seat and the one he seeks are of equal duration, their terms will never coincide, and therefore Barry, and the sixteen other elected officials similarly situated will always have to resign prematurely in order to run for Mayor.

 This hardship, plaintiffs claim, denies them important First Amendment rights, including the right to candidacy and to free expression and political association. It also allegedly denies them the equal protection of the laws guaranteed by the Fifth Amendment, see Buckley v. Valeo, 424 U.S. 1, 93, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976), because the statute discriminates between two classes of officeholders and between a certain class of officeholders and all non-officeholders. Each claim will be examined in turn.

  I.

 The Court has no difficulty recognizing the First Amendment interests involved, but this begins rather than completes the analysis of the challenged provision's constitutionality, for "[neither] the right to associate nor the right to engage in political activities is absolute." United States Civil Service Commission (CSC) v. National Association of Letter Carriers (Letter Carriers), 413 U.S. 548, 567, 93 S. Ct. 2880, 2891, 37 L. Ed. 2d 796 (1973). And the government has an interest in the conduct and "the speech of its employees that differs significantly from those it possesses in connection with regulation of the speech of the citizenry in general." Pickering v. Board of Education, 391 U.S. 563, 568, 88 S. Ct. 1731, 1734, 20 L. Ed. 2d 811 (1968). In assessing the statute's validity, the Court is guided by the approach adopted by the Supreme Court in Letter Carriers and Broadrick, in which the Court sustained against First and Fourteenth Amendment attack broad restrictions on political activity by government employees. Characterized alternatively as a "balancing" test or a "means-end" test, the Letter Carriers approach requires a comparison of, on the one hand, the interests of plaintiffs in being free of the challenged regulation with, on the other hand, the governmental interests served by the provision and the "closeness of fit" between these governmental interests and the statutory prohibitions. 413 U.S. at 564-80, 93 S. Ct. 2880, 37 L. Ed. 2d 79; see Morial v. Judiciary Commission, 565 F.2d 295, 300-01 (5th Cir. 1977) (en banc). The greater the plaintiffs' interests, the greater need be the government's interest and the closer need be the fit between these ends and the means adopted. The conclusion of the Fifth Circuit in Morial, a case involving restrictions on the candidacy for public office of sitting judges, is that Letter Carriers, viewed "as a part of the jurisprudence of the First Amendment," supports the constitutionality of "restrictions on the partisan political activity of public employees and officers, where such activity contains substantial non-speech elements" only "if justified by a reasonable necessity . . . to burden those activities to achieve a compelling public objective." Id. at 300 (citations omitted).

 Plaintiff Barry's right to candidacy is an important but not constitutionally "fundamental" right. See id. at 301; Magill v. Lynch, 560 F.2d 22, 27 (1st Cir. 1977), cert. denied, 434 U.S. 1063, 98 S. Ct. 1236, 55 L. Ed. 2d 763 (1978). The statute does not raise an absolute bar to his candidacy, but only imposes conditions upon it. The rights of all plaintiffs to free political expression and association, while substantial, see generally Williams v. Rhodes, 393 U.S. 23, 30, 89 S. Ct. 5, 21 L. Ed. 2d 24 (1968), are not severely impaired. In his 1976 campaign for his at-large seat on the Council, Barry drew 113,461 votes, twice as many as his nearest competitor and more than all five competitors combined. His constituency is broad-based, and unlike Bullock v. Carter, 405 U.S. 134, 92 S. Ct. 849, 31 L. Ed. 2d 92 (1972), the effect of the restriction is not to exclude from candidacy representatives of an oppressed or even identifiable class. As in Letter Carriers, the provisions do not serve "to control political opinions or beliefs, or to interfere or influence anyone's vote at the polls." 413 U.S. at 564, 93 S. Ct. at 2890. Plaintiffs' rights are impaired, but not to an extent warranting "strict" constitutional scrutiny. Compare Bullock v. Carter, 405 U.S. 134 at 143-44, 92 S. Ct. 849, 31 L. Ed. 2d 92 with CSC v. Letter Carriers, 413 U.S. 548 at 566-67, 93 S. Ct. 2880, 37 L. Ed. 2d 796. *fn5"

 The District of Columbia has enjoyed the franchise for less than four years, and its political leadership is nascent. The provision in question not only deprives Barry and his supporters of protected rights, but also threatens the full and free political participation of a substantial number of leading elected officials. It is difficult to understand what public purpose, if any, is served by this damper on the vigor and vitality of elections for the District's highest offices. Absent a statement by Congress, wholly lacking in this case, of some reason for the provision, the Court is naturally hesitant to accept hypothetical rationalizations for what is an anomaly in state election laws throughout the nation.

 According to counsel, the interests sought to be promoted are three: avoiding the cost of separate special elections, *fn6" maximizing continuity in office, and encouraging devotion to duty. The first has been specifically held by the Supreme Court not to constitute a governmental interest sufficient to ward off constitutional attack. The ...


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