to "test the waters" and establish support.
Continuity and devotion to duty are promoted only to the extent that the statute may deter officeholders from running in the middle of their terms. The deterrent effect, however, is speculative at best and is belied by Barry's own determination to run regardless of the decision in this case. Moreover, any deterrent effect that does exist operates against the public interest by reducing the pool of best-qualified candidates available to run for the District's highest offices. With seventeen of the city's twenty-six elected officials constrained this year by the challenged provision, such a reduction cannot be termed de minimus.
Even if the statute could be said to advance important governmental interests, it has not been narrowly drawn to do so. To cite one example, none of the supposed governmental interests would be jeopardized, and the infringement on plaintiffs' rights would be lessened, if the statute, while continuing to require announcement of resignation four months prior to election, deferred the effective date of resignation until someone had been elected to fill the position. This is the scheme employed by Florida, the only state with a provision resembling the one in question.
Plaintiffs' rights are not fundamental and are certainly subject to regulation by a statute "reasonably necessary to achieve a compelling public objective." But in this case the individual rights must be declared paramount because the broad-gauge statute in question has not been shown to promote any cognizable objective.
Plaintiffs also claim the statute denies them the equal protection of the laws guaranteed by the Fifth Amendment because it discriminates against plaintiff Barry, who, unlike some other Council members and officeholders and the entire public at large, can never run for Mayor, or, for that matter, for Chairman of the Council, without paying a stiff penalty. The penalty is not only a shrinking of First Amendment rights, but a shrinking of the pocketbook as well. By forcing early resignation, the statute requires Barry to forego six months' salary -- even if he wins the election. This is a substantial penalty which impacts more severely -- perhaps preclusively -- on those officeholders of slight wealth. Cf. Lubin v. Panish, 415 U.S. 709, 94 S. Ct. 1315, 39 L. Ed. 2d 702 (1974).
The parties agree that the appropriate standard of scrutiny to be applied is the same as that applied to the underlying First Amendment claim, see Morial v. Judiciary Commission, 565 F.2d at 304, and the issue is thus whether the distinction drawn between the classes created "[serves] important governmental objectives" and is "substantially related to achievement of those objectives." Craig v. Boren, 429 U.S. 190, 197, 97 S. Ct. 451, 457, 50 L. Ed. 2d 397 (1977). The analysis will be served by examining only one of the classifications created and asking the initial question: What governmental objective is served by creating two classes of elected city officials? The parties suggest none, and the only conclusion to be drawn by examining the whole election scheme and what legislative history there is is that none exists. The discrimination wrought is a product of the haphazard interaction of two independent provisions: on the one hand the provisions establishing staggered terms for elected officials, which serve to promote continuity; and on the other hand, § 15(b), which, as noted above, serves no cognizable interest. Without both of these provisions, no discrimination would exist. Since the classification produced is haphazard, it is easy enough to say that the discrimination it works is irrational and thus violative of the equal protection guarantee. Actually, the two provisions in tandem work against the governmental interest in continuity because members of the class discriminated against, like Barry, are encouraged to resign in mid-term. The discrimination is thus at odds with the beneficial purpose of the staggering provisions. Needless to say, no important governmental objective is served by discriminating between the two classes of officeholders, and therefore § 15(b) fails under the Fifth as well as the First Amendment.
There remains the question of severability. Defendant Board of Elections argues that § 15(b) is an integral part of the entire Election Act and thus cannot be struck down without voiding the entire Act. The Court does not agree. The applicable rule was established by the Supreme Court in Champlin Refining Co. v. Corporation Commission, 286 U.S. 210, 234, 52 S. Ct. 559, 565, 76 L. Ed. 1062 (1932):
The unconstitutionality of a part of an Act does not necessarily defeat or affect the validity of its remaining provisions. Unless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.