Dissenting Opinion May 18, 1964.
On petition for a writ of certiorari to the Supreme Court of the State of California.
The motions of Janice C. Herrera and Thomas N. Burbridge, Jr., for leave to file briefs, as amicus curiae, are granted. Petition for writ of certiorari to the Supreme Court of California denied.
Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE and Mr. Justice GOLDBERG concur, dissenting.
I would have granted certiorari in this case as the Journal entry for April 24, 1964, shows; and I file this statement of reasons pursuant to the reservation made at the time.
[ Stassen for President Citizens Committee v. Jordan 377 U.S. 914 (1964) ][927-Continued]
It is now settled, after a period of some uncertainty (cf. Newberry v. United States, 256 U.S. 232, 250 , 472), that a primary election for representatives for the Congress is a part of the election process guaranteed by Art. I, 2 and 4 of the Constitution ( United States v. Classic, 313 U.S. 299 ); and the same reasoning applies to primary elections for Senators pursuant to the Seventeenth Amendment. Terry v. Adams, 345 U.S. 461, 468 , 812; Gray v. Sanders, 372 U.S. 368, 380 , 808.
THE CHIEF JUSTICE, Mr. Justice DOUGLAS, and Mr. Justice GOLDBERG dissent. Opinions may be filed in due course.
We deal here not with the primary election for either members of Congress or the Senate but with the nominating process for a primary election1 in which convention delegates favorable to a particular presidential candidate are chosen, the convention choice ultimately to compete for President in an election under Article II [377 U.S. 914 , 928] of the Constitution-a procedure that Congress has regulated in detail. See 3 U.S.C. 1 et se .
The Court in the Classic case said:
The 'mode of choice' (id., 313 U.S. at 316, 61 S.Ct. at 1038) in California for Presidential candidates is first the nominating petition, second the primary, third, the convention, and fourth, the general election. That fact that the 'mode of choice' is enlarged to four stages is irrelevant to the constitutional purpose to protect 'the free choice' of the people (ibid.) in federal elections.
California, zealous to protect that right, creates the presumption that signatures on a petition are signatures of bona fide electors. Elections Code 6087.2
In this case, however, the presumption is defeated, not because the signatories to the nominating petitions are found to be unqualified but for reasons that relate solely to the administrative convenience of the county clerks. They certify as qualified voters only those that their office has indexed; and concededly the indices are not up [377 U.S. 914 , 929] to date. A voter recently moving to a new district and registering in time nevertheless loses his franchise-not because of any disqualification or irregularity, not because of his failure to do something required, and not because of his commission of a wrongful act. He has done all in his power to qualify as a voter; but his vote is not counted in the nominating stage of the electoral process merely on account of the laziness of the county clerks. This to me is at least arguably an impermissible state denial of a federal right; the question is substantial;3 and I regret it was not argued and decided on the merits.
[ Footnote 1 ] The California Elections Code (1961) provides that nomination papers shall be left with the county clerk of the county in which they are circulated at least 60 days prior to the presidential primary. 6081. The nomination papers in the present case are required to be signed by not less than one-half of one percent and not more than two percent of the vote for the Republican Governor at the last general election. 6080(a), 6082. And it is provided in 6087 that a 'verified nomination paper is prima facie evidence that the signatures are genuine and that the persons signing it are voters, until it is otherwise proved by comparison of the signatures with the affidavits of registration in the office of the county clerk.'
[ Footnote 2 ] Note 1, supra.
[ Footnote 3 ] No other infirmity is shown on the papers before us; and the Supreme Court of California in denying relief wrote no opinion.