# Socialist Labor Party v. Gilligan/Opinion of the Court

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* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Douglas
[p584] MR. JUSTICE REHNQUIST delivered the opinion of the Court.
Appellant Socialist Labor Party has engaged in a prolonged legal battle to invalidate various Ohio laws restricting minority party access to the ballot. Concluding that "the totality of the Ohio restrictive laws taken as a whole" violated the Equal Protection Clause of the Fourteenth Amendment, this Court struck down those laws in Socialist Labor Party v. Rhodes, 393 U.S. 23, 34 (1968). Following that decision the Ohio Legislature revised the state election code, but the Party was dissatisfied with the revisions and instituted the present suit in 1970.
The Socialist Labor Party, its officers, and members joined as plaintiffs in requesting a three-judge District Court to invalidate on constitutional grounds various sections of the revised election laws of Ohio. The plaintiffs specifically challenged provisions of the Ohio election laws requiring that a party either receive a certain percentage of the vote cast in the last preceding election or else file petitions of qualified electors corresponding to the same percentage; provisions relating to the organizational structure of a party; provisions requiring that a political party elect a specified number of delegates and alternates to a state convention; and provisions requiring a party to be part of a national political party that holds national conventions at which delegates elected in state primaries nominate presidential and [585] vice-presidential candidates. In addition, they challenged that part of the Ohio election code requiring a political party to file an affidavit under oath stating in substance that the party is not engaged in an attempt to overthrow the government by force or violence, is not associated with a group making such an attempt, and does not carry on a program of sedition or treason as defined by the criminal law.
The case was decided on cross-motions for summary judgment, the three-judge District Court having before it the complaint and answer of the respective parties, and affidavits filed pursuant to Fed. Rule Civ. Proc. 56. The courts ruled on the merits in favor of all of appellants' constitutional challenges to the Ohio election laws except that involving the oath requirement, with respect to which it ruled in favor of the appellees. Both sides appealed to this Court, and we noted probable jurisdiction. 401 U.S. 991 (1971).
Since then, the posture of this litigation has undergone a significant change. On December 23, 1971, the Ohio Legislature enacted Senate Bill No. 460, which embodied an extensive revision of the state election code. Both sides now agree that the passage of this Act renders moot all but one of the issues decided below. The one challenged provision that remains unamended is the State's requirement that a political party execute the above-described affidavit under oath in order to obtain a position on the ballot.
Appellants' 1970 complaint represented a broadside attack against interrelated and allegedly overly restrictive provisions of the Ohio election laws. The three-judge District Court, in its ruling for the appellants on the issues that have now become moot, stated:
   "The 1969 amendments to the election laws merely perpetuate the restrictive laws enacted between 1948 and 1952. The overall effect of these laws [p586] is still to deny to plaintiffs their constitutional right of political association." 318 F. Supp. 1262, 1269-1270 (footnote omitted).
Thus appellants, at the time they filed their 1970 action, were fenced out of the political process by a series of restrictive provisions that prevented them from making any progress toward a position on the ballot as a designated political party. Their challenge was necessarily of a somewhat abstract character, since under their allegations they were able to comply with very few of the provisions regulating access to the ballot. Now, however, with the enactment of a revised election code, the abstract character of the single remaining challenge to the Ohio election procedures stands out all the more.
Appellants did not in their action that came here in 1968 challenge the loyalty oath. Their 1970 complaint respecting the loyalty oath is singularly sparse in its factual allegations. There is no suggestion in it that the Socialist Labor Party has ever refused in the past, or will now refuse, to sign the required oath. There is no allegation of injury that the party has suffered or will suffer because of the existence of the oath requirement.
It is fairly inferable that the absence of such allegations is not merely an oversight in the drafting of a pleading. The requirement of the affidavit under oath was enacted in 1941, 119 Ohio Laws 586, and has remained continuously in force since that date. The Socialist Labor Party has appeared on the state ballot since the law's passage, and, unless the state officials have ignored what appear to be mandatory oath provisions, it is reasonable to conclude that the party has in the past executed the required affidavit.
It is axiomatic that the federal courts do not decide abstract questions posed by parties who lack "a personal stake in the outcome of the controversy." Baker v. [p587] Carr, 369 U.S. 186, 204 (1962); Flast v. Cohen, 392 U.S. 83, 101 (1968). Appellants argue that the affidavit requirement violates the First and Fourteenth Amendments, but their pleadings fail to allege that the requirement has in any way affected their speech or conduct, or that executing the oath would impair the exercise of any right that they have as a political party or as members of a political party. They contend that to require it of them but not of the two major political parties denies them equal protection, but they do not allege any particulars that make the requirement other than a hypothetical burden. Finally, they claim that the required affidavit is impermissibly vague and that its enforcement procedures to not comport with due process. But the record before the three-judge District Court, and now before this Court, is extraordinarily skimpy in the sort of proved or admitted facts that would enable us to adjudicate this claim. Since appellants have previously secured a position on the ballot with no untoward consequences, the gravamen of their claim that it injured them remains quite unclear.
In the usual case in which this Court has passed on the validity of similar oath provisions, the party challenging constitutionality was either unable or unwilling to execute the required oath and, in the circumstances of the particular case, sustained, or faced the immediate prospect of sustaining, some direct injury as a result of the penalty provisions associated with the oath. See, e.g., Cole v. Richardson, 405 U.S. 676 (1972); Keyishian v. Boards of Regents, 385 U.S. 589 (1967); Wieman v. Updegraff, 344 U.S. 183 (1952).
In Cramp v. Board of Public Instruction, 368 U.S. 278, 283-285 (1961), the appellants were public school teachers who had been threatened with discharge for their refusal to execute the required oath. The Court held that even though appellants might be able to sign the [p588] required oath in good conscience, the record there indicated that they would still be subject to possible hazards of a perjury conviction by reason of the vagueness of the oath's language. In the present case, however, appellants have apparently signed the oath at previous times, and so far as this record shows they have suffered no injury as a result. The State has never questioned the truth of the affidavit, and appellants' conduct and associations have not been constricted as a result of their having executed the affidavit.
The long and the short of the matter is that we know very little about the operation of the Ohio affidavit procedure as a result of this lawsuit than we would if a prospective plaintiff who had never set foot in Ohio had simply picked this section of the Ohio election laws out of the statute books and filed a complaint in the District Court setting forth the allegedly offending provisions and requesting an injunction against their enforcement. These plaintiffs may well meet the technical requirement of standing, and they may be parties to a case or controversy, but their case has not given any particularity to the effect on them of Ohio's affidavit requirement.
This Court has recognized in the past that even when jurisdiction exists it should not be exercised unless the case "tenders the underlying constitutional issues in clean-cut and concrete form." Rescue Army v. Municipal Court, 331 U.S. 549, 584 (1947). Problems of prematurity and abstractness may well present "insuperable obstacles to the exercise of the Court's jurisdiction, even though that jurisdiction is technically present. Id., at 574.
[p590] We find that the present posture of this case raises just such an obstacle. All issues litigated below have become moot except for one that received scant attention in appellants' complaint and was treated not at all in the affidavits filed in support of the cross-motions for summary judgment. Nothing in the record shows that appellants have suffered any injury thus far, and the law's future effect remains wholly speculative. Notwithstanding the indications that appellants have in the past executed the required affidavit without injury, it is, of course, possible that at some future time they may be able to demonstrate some injury as a result of the application of the provision challenged here. Our adjudication of the merits of such a challenge will await that time. This appeal must be dismissed. Rescue Army v. Municipal Court, supra, at 585.
It is so ordered.

## Notes

* ↑ That case was decided together with Williams v. Rhodes, 393 U.S. 23 (1968).
* ↑ Despite the contrary implication in the dissent, see post, at 592-593, n. 3, the holding of Rescue Army has been applied by this Court to numerous appeals in which no statutory or constitutional impediment to jurisdiction was present. See, e. g., Cowgill v. California, 396 U.S. 371 (1970) (Harlan, J., concurring); Atlanta Newspapers, Inc. v. Grimes, 364 U.S. 290 (1960); Teamsters v. Denver Milk Producers, Inc., 334 U.S. 809 (1948). Nor has there ever been any suggestion that Rescue Army should apply only to appeals from state, rather than federal, courts. See United States v. Fruehauf, 365 U.S. 146, 157 (1961); United States v. CIO, 335 U.S. 106, 125-126 (1948) (Frankfurter, J., concurring). See also Albertson v. Millard, 345 U.S. 242, 245 (1953). Despite this lack of case support, the dissent argues that the Rescue Army doctrine should not apply to the present case, since it is an appeal from a federal court judgment pursuant to 28 U.S.C. § 1253, whereas Rescue Army was an appeal from a state court judgment pursuant to 28 U.S.C. § 1257. This distinction is evanescent. Under both grants of jurisdiction this Court is obligated to rule upon those properly presented questions that are necessary for decision of the case. But when the issues are not presented with the clarity needed for effective adjudication, appellate review of a federal court judgment is every bit as inappropriate as was review of a state court judgment in Rescue Army.