Warren E. Burger: -- next in 71-300, Andrews against the Louisville & Nashville Railroad Company and others. Mr. Estes you may proceed whenever you are ready.
Andrew W. Estes: Mr. Chief Justice, may it please the Court. I represent Thomas L. Andrews who used to be a railroad man. One day Mr. Andrews had an automobile accident, which had nothing to with his employment where he was injured necessitating a medical furlough which he was duly given. In due time he regained his health and attempted to return to work. When he got back, tried to go to work, he found that he was still on medical furlough and even with the doctor' certificate he was not permitted to work, and of course he was not paid either. The Railroad, of course, in its defensive pleadings contended that he was neither a fish nor a fowl, that he was not employed and he was not discharged. Mr. Andrews in his complaint, originally in the State Court, then removed to Federal District Court contends that these acts and other acts amount to a common law of wrongful discharge which the state of Georgia recognizes as a common law action. Now what we have today is really a jurisdictional question and it's to determine whether or not courts have jurisdiction over a common law wrongful discharge action arising out of a discharge of a union railroad employee or whether the employee must, and I use the term exhaust loosely of the moment, exhaust his administrative remedies. I think I can show later that we no longer have an exhaustion of the administrative remedies, rather it amounts to an election of administrative remedies. The Court has undoubtedly noticed how brief the petitioner's brief is, because we have a very simple contention. We rely primarily, almost solely on the Moore versus Central Illinois Railroad Company decided by this Court in 1940. The rationale in that case of course was that a railroad union employee could elect either to pursue his administrative remedies or could sue in the court of law for a common wrongful discharge, and we rely squarely on that case. Mr. Moore was fired by the Illinois Central Railroad because he had the audacity to sue them on an FELA case, should understand that as general --
William O. Douglas: He wants the reinstatement or --
Andrew W. Estes: No, Your Honor, he does not. He wants to sue them for damages. The board could, if he made his election and I don't call that exhaustion, but if he made his election, the board could reinstate him, grant him back pay, and give him his job. He doesn't want that. He wants to sue for damages. This Court has said, by the way, on numerous occasions and I will quote in the Slocum case, a common law statutory action for wrongful discharge differs from any remedy that board has power to provide and does not involve questions of future relations between the railroad and other employees. Of course, this general philosophy was stated very well by Mr. Justice Blackmun in the Arguelles case which I've cited not, by the way, as authority for this case, but because of the language in that, I would like to get to it a minute.
William J. Brennan, Jr.: It's definitely -- what would be the measure of damages in the lawsuit?
Andrew W. Estes: I think there would be several things, sir, Mr. Justice Brennan. One, of course there would be the difference between the wages that he would have made with Railroad and wages he has in the past. Also, prospectively --
William J. Brennan, Jr.: Then I gather this -- the crux of the liability would be wrongful discharge, is that it?
Andrew W. Estes: That's right, Your Honor, under a common law theory.
William J. Brennan, Jr.: Before the board I gather -- the board could award back pay, a back pay for wrongful discharge, but nothing in excess of that pay, is that right?
Andrew W. Estes: That's right.
William J. Brennan, Jr.: Whereas your asking damages which will be more than just back pay?
Andrew W. Estes: That's right, it would be post factor as well. Although, I believe in rare instances the board can, I believe can award attorneys fees. I think [Voice Overlap]
William J. Brennan, Jr.: But not in -- wages are limited to lost wages theory, are they not?
Andrew W. Estes: That's right Mr. Justice Brennan, plus reinstatement working back at the railroad.
William J. Brennan, Jr.: But in your lawsuit, you'd be asking for damages -- well would you specify that again?
Andrew W. Estes: Well, general damages being, the measure of damages, of course, we would look to the current trend, see what his wages would have been had he been employed, and what wages he has earned, the difference being the measure of damages that would be retrospective and in post factor, of course it would be a jury question to determine what his future damages might be.
Byron R. White: Do you think that he could be never prospective -- prospectively the difference between what he is thinking in another job, what he would have made with the railroad?
Andrew W. Estes: Mr. Justice White, I certainly do, I believe.
Byron R. White: Even if the railroad said, please come back we'll reinstate you?
Andrew W. Estes: Yes sir, Mr. Justice White, I believe that could be done.
Byron R. White: And he has the choice of not working for the railroad and have the (Inaudible)
Andrew W. Estes: Georgia recognizes a doctrine known as constructive service, where a man makes himself available for work under his employment contract he can remain available and say I am ready to work and you have to pay me. Now of course if they offer --
Byron R. White: The railroad says, we would be glad to put you back to work and he says, no I want to keep the other job, but I want you to pay me the difference between my lower wages on the other job?
Andrew W. Estes: That's a difficult question, I am not sure is decided by Georgia Law.
Byron R. White: If the railroad will put him back to work and if the Adjustment Board would order his reinstatement, but he says, no I don't wanted to be in reinstatement, but I don't how could you claim damages out of the railroad?
Andrew W. Estes: Mr. Justice White, I think that's a very difficult question. I think it's not answered by Georgia Law.
William J. Brennan, Jr.: Well, you say anyway [Voice Overlap] --
Andrew W. Estes: But I would nonetheless, going to the extent I don't think the acts can cut both ways. I don't think it --
William J. Brennan, Jr.: No, but Mr. Estes, you say in any event it's a law question, don't you?
Andrew W. Estes: Yes sir.
William J. Brennan, Jr.: Whatever measure of damages, respective of what might be the limitation if he followed the federal rules to the Adjustment Board, in the courtroom if you are allowed to bring your action under the State Law then you could cover whatever they --
Andrew W. Estes: That's right. Whatever the State Law provides may vary from state to state as well.
Byron R. White: Do you think that State Law would govern the -- what he can recover under a contract with the railroad?
Andrew W. Estes: Well, to start with Mr. Justice White, I am not sure of this. I am not sure if this is a breach of contract case anyway. There is some question about that. The Georgia Courts have had numerous cases on the wrongful discharge that has never been a holding that this is a matter in breach of contract. Assuming it was for a moment, that is what Mr. Moore sued for breach of contract.
Byron R. White: Pay for wrongful discharge?
Andrew W. Estes: Excuse me?
Byron R. White: He had to claim a wrongful discharge?
Andrew W. Estes: Yes, Mr. Justice White, he does.
Byron R. White: And wrongful under the collective bargaining contract with the railroad?
Andrew W. Estes: Yes, Mr. Justice White, it does, but nonetheless I am not sure that, that makes it an action in contract, that is to say an action X contract --
Byron R. White: Whether it is or not, what's the governing law or whether or not he has been wrongfully discharged under collective bargaining contract with the railroad?
Andrew W. Estes: Equivalent or not there was justification under the contract --
Byron R. White: Was it Federal or State Law?
Andrew W. Estes: I think its State Law Your Honor, under the Transcontinental & Western Airlines versus Koppal.
William J. Brennan, Jr.: Have these questions been mooted in other cases that you know Mr. Estes?
Andrew W. Estes: They are mooted --
William J. Brennan, Jr.: There have been a lot of these types of cases before?
Andrew W. Estes: Yes, Your Honor, there is one case, it's very critical. In fact there are two cases, I would like to discuss in this connection. The first is Union Pacific Railroad Company versus Price, I will call it Price case.
William J. Brennan, Jr.: That's one I wrote?
Andrew W. Estes: I believe so. This is a case that really destroys your exhaustion of remedies and makes it an election of remedies because here Mr. Price was fired. I think he also sued the railroad under FELA action. They fired him because of it. He pursued his administrative remedy. The Adjustment Board found that he had been properly discharged. So he said, okay, I have exhausted my administrative remedies, I will go into my court and of course holding of this Court in that case was that you can't re-litigate similar issues. So, we can forget about exhausting of administrative remedies and I think we should from now on be discussing election of remedies. No case has really undermined the Moore decision as the railroad contends. Even the case of Roy Walker versus Southern Railway, that's a real bugaboo case unfortunately because it set some real misapplications to stop while its not a wrongful discharge type case to begin with and should not fit within the particular more exclusion and should not be applied to it. What it really was a was a competition in time case. Mr. Roy Walker also took sick leave, He gave the railroad notice that he was ill. The railroad contended that he had given it too late within 30 days required by the contract. Roy Walker contended he had given it in time. The question really that was not wrongful discharge but was a case whether or not he had given this notice in time. So it was time confrontation case.
Warren E. Burger: Did you call this an election of remedies case?
Andrew W. Estes: I think it is now because of the Price case Mr. Chief Justice.
Warren E. Burger: Being an election of remedies case, do you are still contend that you can collect damages for future unemployment, if the railroad tenders the employment to him as Mr. Justice White suggested?
Andrew W. Estes: I think that's a question to be determined by Georgia Law and by a Jury, Your Honor. I agree that I think --
Warren E. Burger: By a jury, it's not a legal question?
Andrew W. Estes: It may be a mis-question of law, in fact depending on on whether or not the offer is believable. For instance, Mr. Andrews in this case may very well and I would state in my place, probably will on the trial of the case show by evidence that his wrongful discharge was occasioned by things other than his illness and that the illness was a mere charade, a mere sham and there are other reasons the railroad wants to dump him, and that the offer is not a real genuine or bona fide offer but is a way to mitigate damages. Much is attached in an FELA case where the railroad argues to the jury, well, he has done this wonderful job, ironies and what not, their total verdict and then he gets fired. So, I think it maybe a mixed question of law in fact and I think it could be properly submitted to a jury predicated on State Law.
William J. Brennan, Jr.: I suppose the questions we have been putting to you address issues really not before us in this case, is that right?
Andrew W. Estes: No, no. Mr. Justice Brennan, as matter of fact I think these are key questions, because of the collateral cases surrounding the original Moore decision, that it confuses the situation so badly. As I first stated --
William J. Brennan, Jr.: Yes, but if we would overrule Moore --
Andrew W. Estes: If you would overrule Moore --
William J. Brennan, Jr.: -- and that line of cases that would mean you would have to go with Adjustment Board, wouldn't it?
Andrew W. Estes: Not only would Mr. Andrews have to go to the Adjustment Board, Mr. Justice Brennan, you would forever slam the court house door in any other claim --
William J. Brennan, Jr.: As I recall the dissenters in Walker thought we should follow that question?
Andrew W. Estes: Well, yes Mr. Justice Brennan that was true with several notable exceptions. Of course the foundation of the Roy Walker case, it's our contention that it is not really well laid. I think as Mr. Justice Stewart and Mr. Justice White pointed out, you can't really make a jurisdictional determination on how well or fully railroad Adjustment Board is doing. It would be patently discriminatory, what if some poor fellow up in New York who's board is way behind because they have a lot of claims. So, he gets to sue and the guy in Southern California where they don't have many claims, where he has to go through the board.
William J. Brennan, Jr.: What is -- I remember, let me say something, Walker sometimes took 10 years to get through the Adjustment Board, can't they send and enact a statute to --
Andrew W. Estes: Speed up remedies --
William J. Brennan, Jr.: Has that happened or not?
Andrew W. Estes: Yes, Mr. Justice Brennan, it has happened. About 50% of collective decisions --
William J. Brennan, Jr.: [Voice Overlap] five years you mean --
Andrew W. Estes: Well even less, say four years or in some places one-and-a-half years. They vary, but of course you can have a variable jurisdiction throughout the country depending on how the board is doing. Besides that, what if the board slow down five years now, going to let more Roy Walker slip through. Well, I think they couldn't very well do that either, that would be discriminatory. It really shouldn't be predicated though on how well the board is doing. It's a matter of jurisdiction.
William J. Brennan, Jr.: How exactly -- under the amended statute unlike the situation of the time Price was decided, is it they are now a judicial review of that, both ways? At the time Price was decided, you said there was judicial review under the then statutory scheme for the railroad, but not for the employee of a -- an Adjustment Board decision, isn't that right?
Andrew W. Estes: That is right, Your Honor.
William J. Brennan, Jr.: But now under the new statute there is a judicial review, is it there, both the employee as well the railroad may have it?
Andrew W. Estes: Well, may it please the Court, I would take the position that a judicial review is not a review they now -- I maybe mistaken but I think that the findings in fact [Voice Overlap] the case --
William J. Brennan, Jr.: But we said in Price there was no judicial review at all on the part of -- available to the employee?
Andrew W. Estes: Perhaps you did Mr. Justice --
William J. Brennan, Jr.: But now there is some at least whatever --
Andrew W. Estes: It's my understanding that Mr. Price would not be permitted to re-litigate issues already determined and it would be petitioner's contention, that would be basically the same as now that when a matter once decided would not be re-litigated on factual finding. There is another interesting thing about the 1966 amendments which I respectfully submit was totally overlooked by the Court in the Roy Walker case which is that the 1966 amendments should be a clear designation of legislative intent in this regard. That is to say, sweeping changes were made and some real positive things were done by the legislature to speed up the remedies, all sort of balance and add a little bit too, I think. But in all of the committee reports and in all of the legislative committee meetings and the history of the legislature there, and in the legislation itself, there is not one single word, not one iota of change as to the scope of the jurisdiction of the board, nor the limitation of the Federal or State Courts in these matters. I don't know where you can get a much clearer mandate in a legislature. They had their opportunity. It was a big crisis. It was a big issue. = Something had to be done. They did some procedural things and they dare not touch the authority or the scope of the jurisdiction --
William J. Brennan, Jr.: But this argument didn't affect the -- they meant that Moore should continue to be effective in situations where it might properly apply?
Andrew W. Estes: Absolutely correct, Your Honor. I think this is a perfect opportunity to end this legal battle or the chipping away and the pecking away of Moore with the Koppal decision. There is another area, I would point out to the Court which is the real distinguishing characteristic between what I call Moore type cases, that is to say a purely wrongful discharge case and a Slocum type case or Charlie Maddox type case, that's Maddox versus Republic Steel Company. These are cases where someone, and by the way the Slocum type case, Mr. Slocum was the Chairman of the railroad union, two unions were in dispute as to who had jurisdiction over certain area of work. The railroad attempted to file in State Court an action for a declaratory judgment to make a determination and of course, they were required to go by the arbitration method. This was completely distinguished in the Slocum case from the Moore type case where this is an ex-employee who is not involved in rights by the railroad employees, and he is still in the railroad just like their (Inaudible). The Walker case is like a Slocum case. Charlie Maddox's case was a case where Charlie Maddox had been properly laid off and was suing only for severed claim in the contract. Now I said that I would come to the Arguelles case. I want to mention it just very briefly because I think that can straighten out some also very unfortunate language that came out of the Roy Walker case, and that was the language that the Court of Appeals in the instant case used, even though they conceded that although the law was on my side nonetheless a ruling against me was this, the overruling act has also held that is about a certain as a season, changing as the season coming from Mr Justice Black in that case. Mr. Justice Black, in the Arguelles case made a very strong, very fine statement and I think it reflects the feeling of this Court, the thrust of this Court and its perseverance and continue to try to maintain the courthouse door is open to the public, to the little man, where Mr. Justice Black and this was consideration, by the way Arguelles case was a seaman suing under a statutory right to elect. The Court says, in Arguelles the legislature clearly preserved his right to sue. In the Section 301, in which the case has been, Section 301 the legislature has not clearly taken it away, and it would be highly precipitous for this Court or any court, to remove the man's right to litigate a wrongful discharge, a common law action in a court without specific legislative action and no clear reflection of any legislative intent toward that direction in any event.
Byron R. White: Let's assume your client wanted reinstatement; could he get it in court?
Andrew W. Estes: Could he get a reinstatement in court? Your Honor, I don't believe so, I think --
Byron R. White: Why not?
Andrew W. Estes: Well, I don't believe you can force someone to be employed somewhere. I don't believe the railroad to be forced to make him, he was an electrician, so say, I don't believe that you can force a railroad to let him put together their switch box, they may have to pay him, may have to give him damages, but I don't believe that they have got to employ.
Byron R. White: Well, doesn't the Adjustment Board sometimes give back pay and order reinstatement?
Andrew W. Estes: Yes, Your Honor, it does readily.
Byron R. White: Can't you get the same kind of relief in court?
Andrew W. Estes: No, Your Honor, I think damages, general damages for common law wrong are totally different damages and they can't --
Byron R. White: Why couldn't the court order a reinstatement, if the Adjustment Board could?
Andrew W. Estes: Well, perhaps, a court could. I don't believe the railroad or Thomas L. Andrews want reinstatement and I think the evidence indicates --
Byron R. White: My question -- that isn't my question.Is there some legal barrier to the court giving reinstatement or not?
Andrew W. Estes: Mr. Justice White, in all probability a court could tell the railroad either it had to hire him or --
Byron R. White: You don't think that the Adjustment Board has exclusive jurisdiction for the reinstatement?
Andrew W. Estes: No.
William H. Rehnquist: Is it your position that even if the Adjustment Board would order reinstatement, the railroad would be free to say we just don't want this particular man working for us, we'll pay him the money, but we don't accept his services?
Andrew W. Estes: That's never been litigated to my knowledge, Mr. Justice Rehnquist but that would be my position, yes. Because you can't make the railroad put someone in their machine shop monkeying around with their equipment that they don't want.
Potter Stewart: No court of course can order somebody to work for an employer and that's just as the first day of the contract, (Inaudible)
Andrew W. Estes: If it please the Court, I would like to reserve the rest of my time for rebuttal.
Warren E. Burger: Very well Mr. Estes. Mr. Major.
William H. Major: Mr. Chief Justice, may it please the Court. I somehow get the feeling that if you argue in favor of a court trial, that means you are for the working man and if you argue in favor of administrative remedies, that means you are for the railroad. And I don't think that's right and I don't think it is reflected in the Congressional history of this Act, and I don't think it is now the present thinking of labor and the railroad that, that is correct. I submit that the Railway Labor Act was an act sought by both the unions and the owners of the railroad. That in those days in 1926 when the Act came into being, there was a feeling of voluntariness in the eyes of the Congress that they could simply prod one side and the other side by means of the Railway Labor Act and achieve the desired results. And that is what is done in the area of major disputes, those disputes arising out of giving the contract to start off with, that's where the union has a right to strike when the prodding doesn't work, although the railroad has a right to lock out and that is on a voluntary basis. On the other side of the coin, in minor disputes where you have the interpretation or application of contracts; both the union and the railroad have been in favor of that administrative remedy. Now I don't know how the case of Moore ever came to be in view of the legislative history because if you look back in the 1934 Amendments which took place of course shortly after the passage of the Act, when they found that the minor dispute area wasn't working because of the fact that it was voluntary, the union has voluntarily appointed the Board of Adjustment members and the railroad voluntarily appointed their members and neither side would do it, and they found that wasn't working. And both the unions and the railroads came back to the Congress and in effect said, it's not working and we have got to do something about the area of minor disputes. And bear in mind of course that the word minor dispute is a word of art that the framers of the act used not because they thought that the disputes were minor, but to distinguish them from strike issues, they used that word of art. As a matter of fact, when the Amendment was in the committee, it was proposed by the Federal Court in the area of transportation, an office that no longer in existence but he said the existence of mandatory Boards of Adjustment would create nice enough and more consistent in the interpretation and application of contracts.
Warren E. Burger: Mr. Major, you will have to watch your notes in relation to the microphone, its a little difficult.
William H. Major: And in those committee hearings, a member named George M. Harrison, who probably had as many credentials as a union may have, he was president of the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees and appeared as chairman of the legislative committee of the Railway Labor Association, he said this in substance. He said, these areas of minor disputes that we are looking at in the form of the compulsory Adjustment Board, they may very well involve a man's seniority, a man's pay for amount of work done, his promotion rights and then I quote him as saying, it may very well concern the separation of the employee from the service, whether or not he has been unjustly discharged. So as early as 1934 in the Congressional hearings, the union representatives were talking about mandatory Boards of Adjustment to take care of the disputes between the railroad and the working man over matters of promotions, seniority, rates of pay, including discharge. And then this Court came along and decided Moore in-spite of that legislative history. Even more remarkable is the way in which Moore was decided. You understand the Railway Labor Act in exhaustion of administrative remedies was and (Inaudible) in Moore. It wasn't even briefed by the winning side as a matter of fact. Moore came upon then novel Erie question. Moore was in the State Court and it was a statue of limitation questions involved, whether a one-year statute controlled as Moore's contract or the six-year written contract with the Union and it got to this Court on the thinking that the State law controlled. As a matter of fact later on in amplifying Moore and distinguishing Moore in the case of Koppal, this Court held, “you must exhaust your administrative remedies in your state if your state requires exhaustive remedies, but you need not if your state does not require the exhaustion of remedies.” So, you have Moore on one hand and Koppal on the other hand, one of them saying that you had to go the Adjustment Board, the other one saying it didn't depend on the act and the way you happen to be fired, as it were. However this Court I think has now fully and finally solved the question of whether State law or Federal law applies. I think in the case of Textile Mills versus Lincoln -- Textile Workers versus Lincoln Mills, decided by this Court in 1957 and also the case of International Associates of Machinists against Central Airlines, this Court has once and forever solved the problem by saying that anything under the Railway Labor Act involving minor disputes is controlled by Federal law. Therefore, when we say that this man who has been discharged doesn't have a remedy that's available to the middle man, as he has expressed, it's contrary to the thinking that the Unions and to the thinking of the framers of the Bill as it came through the Congress and it's contrary really to the thinking of this Court. It is true that --
William O. Douglas: He doesn't have a -- he has no power to go through the Adjustment Board himself, does he?
William H. Major: He does indeed, Mr. Justice Douglas.
William O. Douglas: He had to go through the Union?
William H. Major: If my understanding of the Act is correct, he has an absolute right to go himself. Now, where he may not be able to go himself is to a Public Law Board.
William O. Douglas: No, but in terms of Section 3 (2) says that the request either made by the representative of proctor class of employee or by the carrier?
William H. Major: It is my impression that the 66th Amendment of the Act --
William O. Douglas: I am reading the 66th Amendment. The only thing he has is if his Union questions the claim and looses then he can appeal.
William H. Major: Reading 'J' of this Section, it says parties maybe heard even in person by Council or by other representative as they may respectively elect and I would assume that means if a party can be heard in person, a party means an individual rather than the Union, I would guess.
William O. Douglas: But as I read Section 3 (2), the Amendment of 1966, it receives complaints only by Unions or by carriers?
William H. Major: Mr. Justice Douglas, if that is true then my conception of the Railway Labor Act or my dispute is erroneous because it was my definite impression that not only could it be done, but it was being done daily before the Adjustment Board.
William O. Douglas: But I just wondered how a Union normally would be the spokesman, if they are reading statement taking care of the interest of the employee in the future, but if the employee wants to put this thing behind him and get out of the business and never go back and work again than the Union is might not be a very good representative of him?
William H. Major: That is always of course a possibility Mr. Justice Douglas. In that connection of course the criticism that this Court found of the whole situation as assumed by Walker against the Southern Railroad was one of delay and another of inequity. The delay that has been referred to and which is referred to in that decision is the delay of Adjustment Board. The first division, for instance had a delay of at that time was seven-and-a-half years. With that in mind the Congress in 1966 attempted to remedy the situation on the question of delay and again it is quite remarkable in the committee hearings just what happened. In those committee hearings there was days and days of hearings and so there is all kind of material in there, but the remarkable testimony of Mr. Jesse Clark who identified himself as President of Brotherhood of Signalmen on behalf of the Railway Labor Executive Association and its 22 member Union group, testified thusly. He said if the objectives of speedy, fair and simplified handling and some of contract claims and grievances in this industry are to be achieved, it would be done by reducing to a minimum rather than by expanding the role of the Courts in this field. And so there is a Union man himself saying that we, the Union men are the ones that want as well as the Railways do, some way to break this backlog. And so in order to break the backlog, they changed the law to provide man for what has been commonly known as Public Law Boards. A Public Law Board is nothing more than a Railroad appointing one man, the Union appointing one man, they meet together and it can be done within 30 days, they meet together and solve the disputes. If they can't solve the dispute, they ask the Mediation Board to appoint a neutral referee who breaks the deadlock and they solve it and their decision has the same force and affect as if the entire Board of Adjustment met and decided the matter.
Thurgood Marshall: Well what happens if both the Brotherhood and Management, both decide that this man is ought to be thrown out of his job?
William H. Major: Well he has a contract that probably -- the Brotherhood I wouldn't think would have anymore right to throw him out of the job and then would the Union. They wouldn't have the right to throw him out of the job. He works under a Collective Bargaining agreement.
Thurgood Marshall: It has always worked and in fact in some instances where man is just is not loved by anybody?
William H. Major: You mean, he gets double crossed by his own Union, is that what you are referring to? Well, I think that the that the answer.
Thurgood Marshall: I imagine Congress has figured that would be the exception rather than the rule?
William H. Major: There is no prohibition against him suing his own Union obviously and secondly I don't think that again there is any problem in that regard because if he has a contract right, the Adjustment Board can give him just the same relief as the Court can.
Thurgood Marshall: And Union can't violate the contract just to take care of the guy they don't like?
William H. Major: I would not believe they could Mr. Justice Marshall. What happened was when they created these Boards of Adjustment and we attached as part of our brief, a table of the report of the National Mediation Board, which includes the report of the National Railroad Adjustment Board and these divisions are not geographical, they are by trials you understand, the division that Mr. Andrews is in is substantially current. You will notice from the table that they have only taken in 69 new cases last year and they disposed off, pardon me, that's wrong, 162 cases and they disposed all 300 cases and they are substantially current. So, there is no reason in the world, that Mr. Andrews could not get a very speedy hearing before his division of the Adjustment Board and as to what he can get when he gets there that obviously is one of the key question is can he get the same thing he can get in Court. According to law of Georgia it is highly dubious that a man can go into court and sue for wrongful discharge, while at the same time refusing to take back employment that has been proffered to him by his employer because of the fact that he must mitigate his damages and the offer of his job back simply shows that he hadn't any substantive damages in the future. And so therefore the only thing that he can get is a money judgment for such amounts of actual lost wages that he has accrued. Now that's not true necessarily before the Adjustment Board. Before the Adjustment Board he can get back pay, he can get seniority adjustments, he can get Attorney's fees in some instances and he can also get a reinstated and if they say he must go back to work then the Railroad must put him back to work and the Railroad doesn't have any choice. So, it may be that they can get more than he can get in court. I don't think it would be erroneous to say that perhaps he can get reinstated by a court action. But, certainly a speedy remedy is readily available for him to just get everything that he can get in a court house. It is interesting to me that Moore has been perhaps explained rights and laws, accepted – it's -- everything done to it, but nobody has yet either fully affirmed it or fully overruled it. It seemed to me sort of an embarrassing step child sitting back there and we say that now in view of the history of the Act there is no longer any reason for Moore to exist. The fundamental reason of course is that you have an administrative hearing rather than Court hearings in this area, in the Railway Labor area is the fact that in addition to speed that you get uniformity of decisions. As it now stands if you can sue on these contracts, these contracts are highly complex, in that they are part written and part customer of the trade as it were.
Byron R. White: Now if I may ask you, assume a railroad worker has a grievance under the contract and they try to settle it on the property and just didn't settlement and neither side takes it to the Adjustment Board, that isn’t -- the only way it gets to the Adjustment Board is if somebody takes it there?
William H. Major: Yes sir. The case (Inaudible), is that your question Mr. Justice White?
Byron R. White: What I really am asking, may the railroad and the worker together waive the Adjustment Board?
William H. Major: Worker and the Railroad together may enter into a settlement of problems --
Byron R. White: Yeah but they don't settle it, but the Railroad says but we don't want to go to the Adjustment Board, you don't want to go to the Adjustment Board, go to Court, we will settle it in the Court.
William H. Major: Your question Mr. Justice White is broader in that your question is may the parties in a situation where administrative exhaustion of remedies is required maybe they waive the exhaustion of administrative remedies?
Byron R. White: No, exhaustion administrative remedies required, all the Act says is that somebody can it take it to the board and if somebody takes it the Board, the other party is got to go there too.
William H. Major: Mr. Justice White I'm not sure I'm perceiving your question, but let me express it this way. I would seriously doubt that under the Act as it it presently stand and under your decisions, there is anything to litigate in the court house anymore in connection with the Railroad Labor Act. Now whether you could say the parties waive the act and decide to file a private lawsuit over here, I would think the Court would question its own jurisdiction under those circumstances. I just don't see any concept of the Railway Labor Act dealing with anything other than mandatory on both sides. I suppose of course, that you can do anything almost by agreement, and I suppose that you and I could litigate in Florida although neither one us live there unless court has this part but --
Byron R. White: If union refuses to go to go the board -- Mr. Justice Douglas was asking if the union refuses to go the board when the employer turns the grievance down, the worker can't go to Court, they can't go to the board. Is that it?
William H. Major: I am of the opinion that the individual himself can go the board and it is not depended on his union taking it there?
William O. Douglas: That is what the statute says and in your brief instead it’s just the opposite.
William H. Major: I was --
John Paul Stevens: Employee representative can go --
William H. Major: I thought that the Public law boards were limited to the union but I was always of the impression that the board itself was open to an individual without his union representatives and that my perception of the law.
Potter Stewart: I have read somewhere in these briefs -- I've read them some time ago, but in the statistics it shows that there are several cases that have been filed by individuals, not by --
William H. Major: I am sure a public law board --
John Paul Stevens: [Voice Overlap] says the remedy, that's 1966 remedy was provided that either a carrier or employee representative would request to the other [Inaudible] to the special board.
William H. Major: Yes, that's a special board, that's a so called public law board, but that's not, that's where -- approaching one member and when I am approaching other member, that is public law board and Your Honor eminently correct that has to be done by the union representative, but to go with the adjustment board itself and one of the definite question, an individual can do without his union going with it.
William H. Rehnquist: But, isn't the public law board that had speeded this thing up?
William H. Major: Well, public law board was exactly created by the 66th Amendment for the purpose of speeding it up and they have speeded it up.
William H. Rehnquist: So, if the only way an individual union man can go is not to the public law board, but to the adjustment board as a whole you might not get the benefit of the speedy treatment that was contemplated in 1966?
William H. Major: We think exactly he will get the speedy treatment because -- by reference to the table in our brief Your Honor will readily see that the adjustment boards don't have the backlog of cases they had. This man's division for instances is on less than a year's time schedule. Now, for the first division is where the backlog always was is not that current, but it looks like from computing the figures that by June of next year they would be on about a year backlog basis, and that's what means you go to Court trial. As matter of fact this man has been litigating for three years on this case, he hadn’t has trial yet and so obviously the public law boards are going to speed up tremendously but even if he has go with the full board, he is much faster than if he goes to Court house. The uniformity of the decision questions that I was speaking about has to do with the fact that these boards report their cases that they handle and they therefore have uniformity of decisions. Whereas if the worker must go to the Court house for interpretation of his contract, the Federal judge sitting there on the District level has a very awkward task before him because in Atlanta, Georgia for instance, the only place where the reports of the adjustment board are on file and record, we know is the (Inaudible) of the Railroad. So, if the federal judge had one of these cases in Atlanta, trying to look for precedent would be almost impossible unless he wants send his clerk over to the railroad office. Last, of course is the question of expertise before these boards. The average man doesn’t get fired just willy-nilly of course there cases of that. This man for instance, is not fired. This man has been on furlough because of medical reasons. He is perfectly free to walk back in the railroad office tomorrow and say I demand my job and they said fine, go to the doctor and if he passes you, you are back at work that's what the union contract says, that’s what collective bargaining agreement says. If the doctor doesn't pass him then he is totally free, if he thinks he has been mistreated of course to go the Adjustment Board. So, what I am saying is that the question of expertise has something to do with it. Of course this the man that gets fired for breaking the coupling, the engineer if gets fired for breaking the coupling, that might sound to be a right stringent thing to do to him just to breaking a coupling. But what the Railroad knows is that you don't get fired for breaking the first couplings, you get fired because you have broken the series of couplings and it's symptomatic of the problem that you will be a bad engineer not because you broke one coupling or if you go through and broke and then blow its whistle, you will get fired for that first time you get fired after accumulation of those kind of offenses. And when you speak about (Inaudible) derailers and hydraulic couplings, the average judge doesn't know what you are talking about. That is something that the member of these board know, they deal with it every day and therefore the worker gets a degree of expertise before these boards that he doesn't find at Court house. In summary therefore we say that the problem that this Court looked at in the Walker decision has vanished because of the fact that the Congress has amended the act and now a speedy remedy is available. The inequities that this Court looked at in Walker case is gone now because of the fact that the Congress in amending the act in 1966 provided for an appeal by either side instead of the mere de novo appeal which only the railroad could take advantage of as previously the law.
William J. Brennan, Jr.: And what's the employees feel now on the 66 act?
William H. Major: Exactly the same as the Railroad is --
William J. Brennan, Jr.: De novo?
William H. Major: -- it is not the de novo Mr. Justice Brennan. It is limited to fraud or corruption or a failure of the board to confine itself within the frame work of the act.
William J. Brennan, Jr.: In another words you are treating the board pretty much as an arbitrator?
William H. Major: Yes, almost exactly on the question of arbitration yes.
William J. Brennan, Jr.: And is that true on both sides that on the review – railroad review or an employee review.
William H. Major: The review is equal on both sides and exactly in the same manner. And so we therefore say that Moore has no reason to exist. It probably doesn’t need to be reversed or overruled for reason that new situations have taken place within the act that give it a new day, but it necessarily it means that Moore no longer is the law and that the administrative remedy provided by Congress is correct route for the employee to go.
Warren E. Burger: Thank you, Mr. Major. Mr. Estes do you have anything further?
Andrew W. Estes: Mr. Chief Justice and may it please the Court.
William J. Brennan, Jr.: [Voice Overlap] is that can an employee individually go to an Adjustment board?
Andrew W. Estes: Your Honor it is my understanding that he cannot, but he can sue his Railroads for failure to do it, I believe there is Supreme Court case on this.
Warren E. Burger: Is it union or the railroad?
Andrew W. Estes: I think the employee once he is fired, once he is out in the court, I believe he can sue the union for its failure to adequately represent him and join --
William J. Brennan, Jr.: Now, but suppose he wants to go to the adjustment board route, you mean he can't go unless the union will take his case?
Andrew W. Estes: Mr. Justice Brennan it’s my impression is that he cannot go himself, representing himself or through his counsel representing him. This is my impression I am no libel...
William J. Brennan, Jr.: Well that -- if that so then what's this case all about. He has no administrative remedy you are telling.
Andrew W. Estes: What this case is all about Your Honor --
William J. Brennan, Jr.: What -- if he can't go with his grievances independently of his union does he have administrative remedy then?
Andrew W. Estes: May it please Court, we have taken the position that he cannot. Most particularly in an interesting case like the case at bar. I hadn’t intended it to bring this out. There is no evidence by the way, there has been no discovery in the case, and it is almost pure law question. But my opposing counsel brought out that he could just go back and demand he his job at any time. I would tell you, the state in my place that Mr. Andrews has gone back, he is gone back with three physician certificates, he went to the chief surgeon for the Railroad who absolutely refused to examine him even and said get out, we don't want you anyway, get out of my office and throw him out. He is now neither a fish not a fowl, because he is not fired and he is not employed.
William H. Rehnquist: Is that in the record or is this --
Andrew W. Estes: There is no record judge, I am awfully sorry, There has been no discovery --
Ruth Bader Ginsburg: Well now the problem which seems to divide you gentlemen somewhat and I an inclined to say it's confusing to me is important one, something very easy to find out. Would you each address yourselves to that in a supplemental memorandum and tell us what is the facts, what is the practice and what is permitted, whether the employee may go to the Adjustment Board without the union whether he can't because as Justice Brennan has suggested that it's rather crucial to decision in this case, if not dispositive?
Andrew W. Estes: It might be dispositive in one respect Mr. Chief Justice. In another respect I would say and the only way it could be dispositive I think it would be in the favor of the petitioner here. But, even filing the other way I would certainly urge the Court to find the Moore doctrine is well supported in rationale and that has not been changed through out the years and had expression by Mr. Justice Blackmun.
Speaker: We won't cross that bridge until we get your responses on this score.
Andrew W. Estes: Very well, Your Honor I think --
Warren E. Burger: You may argue your point on it if you wish [Voice Overlap] --
Andrew W. Estes: I would like go ahead with that if I may. Justice Black expressed the view that the Labor and Management Relations Act should never be construed so as to require individual employee, after he is out of the job to submit a claim involving wages to grievance and arbitration proceedings or to surrender his right to sue his employer in court for the enforcement of his claim acquired. Well again this was brought out by the opposing counsel. The railroad and Union agree, but Mr. Andrews is doesn't agree, he is out in the court, he doesn't have a job, he didn't have union, he is out, he wants to sue the railroad for wrongful discharge, he has an action for wrongful discharge recognizable in the State Courts, he is to free pursue it because of the Moore decision and really when we get right down to the final last word on the argument it's our position that we are relying on the Moore doctrine is well founded and has never been changed, either by legislative or judicial act. I appreciate your attention.
Warren E. Burger: Thank you Mr. Estes. The case is submitted.


William H. Rehnquist: We'll hear argument now in No. 91-535, Alan B. Burdick v. Morris Takushi. Mr. Eisenberg.
Arthur N. Eisenberg: Mr. Chief Justice, and may it please the Court: At issue in this case is the constitutionality of Hawaii's total prohibition against write-in voting. This case began in 1986. In the general election that year held in Hawaii with respect to State legislative offices, one-third of those elections were uncontested; a single candidate was running unopposed. And that pattern of uncontested elections was consistent with the pattern that prevailed in the 1982 elections and in the 1984 general elections with respect to State legislative offices. One of the uncontested elections in 1986 occurred in the State legislative district, the State House of Representatives district in which Mr. Burdick lived. A single candidate was running unopposed. Mr. Burdick had no interest in voting for that candidate. He did, however, want to participate in the election, and he saw his only opportunity to participate as the casting of a write-in ballot to express his opposition to the single candidate running unopposed, and to express support for an alternative candidate. Hawaii, unfortunately, has a total prohibition against all write-in voting in all elections and under all circumstances, and that total prohibition was invoked to bar his right to exercise a write-in ballot. This total prohibition, therefore, denied Mr. Burdick the opportunity to vote for the candidate of his choice, or in the alternative, to cast a ballot as a protest vote. Moreover, one of the unique functions of write-in voting in our society is that it serves as a safety valve mechanism, to permit voters to respond to new issues or changed circumstances that arise after the close of the petitioning period but before the election. In this case, Mr. Burdick did not realize that a single candidate was running unopposed until the close of the petitioning period and still Hawaii invoked its total prohibition against write-in voting, even to deny the use of the write-in ballot as a safety valve mechanism.
Speaker: Mr. Eisenberg, are you asserting the right just to make a write-in vote for someone who would otherwise be qualified to be on the ballot?
Arthur N. Eisenberg: We think that Mr. Burdick has a right to vote for somebody who is unqualified as well as for somebody who is qualified. We think that if Mr. Burdick--
Speaker: For someone, who under State law could not qualify to occupy the office?
Arthur N. Eisenberg: --That's right. In that instance, the vote would simply be a protest vote, a vote no.
Speaker: Donald Duck. Mickey Mouse, Donald Duck, whatever, that is fine. You are claiming that right?
Arthur N. Eisenberg: We are claiming that the individual has a right to vote for Mickey Mouse or Donald Duck. How the State chooses to record that vote is--
Speaker: I suppose that anyone can write something on the ballot. Now you are going further than that, you want the State to have to count it?
Arthur N. Eisenberg: --Well, there are several things that are implicated in the phrase, count it. We don't insist that Mr. Burdick has the right to have somebody who is ineligible to hold office, hold office. So his vote isn't counted towards the election of that person. But we do think that the right to vote embraces both a right to choose, and if there is no meaningful choice, a right to say no, and if Mr. Burdick chooses to say no by voting for an unqualified candidate or a fictional character, Mr. Burdick can do so. The State should record his vote, we think, as a protest vote. The State has an obligation to record that vote as a protest vote.
Speaker: You mean quite literally to set up a column in the returns that it gives to the reporters and certifies, to set up a column as protest vote?
Arthur N. Eisenberg: Well, there are several approaches. The State of Virginia simply records every vote as it is written in, so that if somebody votes for a fictional character, if somebody votes for an unqualified candidate--
Speaker: You think the Constitution requires every State to do that?
Arthur N. Eisenberg: --We think that the Constitution, at the very least, requires that the State acknowledge the protest vote, the vote no. We think if elections are about voting either in support or against candidates, then the vote against a candidate must be recorded somehow. It needn't have a full list--
Speaker: Just a minute, I am trying to ask you a question.
Arthur N. Eisenberg: --I am sorry. I am sorry.
Speaker: What provision of the Constitution do you think it is that requires that?
Arthur N. Eisenberg: We think that the textual source of our constitutional claim is either the First Amendment or the equal protection clause.
Speaker: Have we ever held that the First Amendment establishes a right to vote?
Arthur N. Eisenberg: Well, we have--
Speaker: Have we?
Arthur N. Eisenberg: --We have used the equal protection clause to find that there was a right to a meaningful vote.
Speaker: I wasn't asking you about the... I didn't ask you about the equal protection, I asked you about the First Amendment.
Arthur N. Eisenberg: Well, I think we have talked about the First Amendment right of political participation in a number of cases, and in Anderson against Celebrezze, the Court identified the right to vote, the right to run for office, the right to associate in support of a candidate, all as an amalgam of rights protected by the First Amendment.
Speaker: Is the theory behind your answer a theory of effective franchise or solely a theory of First Amendment expression, in effect, quite independent of the act of voting?
Arthur N. Eisenberg: I think, Your Honor, it is both. It involves the right to cast a meaningful ballot, which is in some sense, the right of effective franchise.
Speaker: Well, to the extent that your argument is based on a meaningful ballot kind of argument, why should the standards be any different from... or perhaps you are not saying they should be, but should the standards be any different from the ballot access cases?
Arthur N. Eisenberg: We think that the overarching standard employed by this Court even in ballot access cases generally is Anderson against Celebrezze which--
Speaker: Do you think under the ballot access cases, we will assume it is some real individual, not Donald Duck, decided at the same time your client did that he would like to be on the ballot and came forward under, given the statutory scheme of Hawaii, that he would have any claim on the ballot access theory?
Arthur N. Eisenberg: --Well, we think that he may or may not have a claim under a ballot access theory, but that is because there are very different interests that apply when the State is regulating access to the ballot in a formal printed way.
Speaker: Well, but the fact is that the ultimate value to be served by ballot access is effective franchise. I mean, it is ultimately a public interest and not merely the interest of the individual who wants to be on the ballot, and bearing that in mind, number 1, shouldn't the standards be the same whether we are dealing with a person who wants to be on the ballot or the person who wants to write in a name. Wouldn't you agree that they should be essentially the same standards?
Arthur N. Eisenberg: We do agree that the standards are the same, and the standard is Anderson against Celebrezze.
Speaker: Now if they are the same standards, isn't it clear that under the Hawaii statute, the access to the ballot is sufficiently free so that the individual who woke up after the primary period and said, gee, nobody is running, I want my name on there, that individual wouldn't have any claim under the... given the Hawaii statute.
Arthur N. Eisenberg: Well, we think that that individual should have a claim, because we think that write-in voting provides an important safety valve mechanism which should be recognized--
Speaker: So that you basically want us to expand the law, not merely with respect to somebody who wishes to write in, but you want us to expand ballot access law beyond any point that it has reached thus far.
Arthur N. Eisenberg: --Well, ballot access law as we have generally understood it involves regulating the formal printed ballot.
Speaker: What's the answer to my question? I mean, you do basically want an expansion of ballot access from anything that our cases have held up to this point, isn't that correct?
Arthur N. Eisenberg: If ballot access is to be defined more broadly, as Your Honor is suggesting, yes, that is correct.
Speaker: I thought you were accepting that.
Arthur N. Eisenberg: That would be correct, but we think that the overarching standard is the Anderson against Celebrezze standard, which requires in this instance the State of Hawaii to come forward with some showing that the total prohibition that it imposes is necessary to the advancement of some substantial governmental interest, and that is a showing that the State of Hawaii cannot make in this case. That is a showing that the State of Hawaii has not made in this case. Hawaii advances four interests in support of its claim. First, an interest in limiting factionalism by prohibiting sore-loser candidacies; second, an interest in protecting political parties against interparty raiding; third, an interest in an informed electorate; fourth, an interest in protecting Hawaii's runaway election provisions.
Speaker: With respect to each of those interests, do we apply strict scrutiny, rational-basis scrutiny or some other form of scrutiny to assessing the validity of Hawaii's interest?
Arthur N. Eisenberg: We think we apply Anderson against Celebrezze with teeth, which approaches strict scrutiny, which is the standard imposed in Tashjian and in Eu.
Speaker: Is that under the First Amendment prong of your argument or under the right-to-vote prong?
Arthur N. Eisenberg: The Court has in Anderson and most recently in Norman against Reed suggested that while it looks first these days to the First Amendment as the source, as the textual source for the protection of the rights of electoral participation, it would reach the same result under the equal protection clause, and it doesn't much matter whether you call it a right to vote or an equal right to vote. In both instances, we think that Hawaii is obligated to show that the total prohibition is necessary to the advancement of substantial governmental interests, and it has not made that showing in this case. The interest in an informed electorate, while a worthwhile goal, cannot justify Hawaii's blanket prohibition, even in circumstances where there are no sore-loser candidates. If the State is concerned about sore-loser candidates it can enact a narrow sore-loser provision. The interest in protecting parties against interparty raiding has no application whatever to a prohibition that would be extended to a general election. Interparty raiding is a concern about voting in primary elections. So again, Hawaii's total prohibition sweeps too broadly. We think that there is another consideration in this regard, and that is that at least one of the three established parties in Hawaii, the Libertarian Party, has now expressly requested that voters in its primary elections be permitted to cast write-in ballots. So Hawaii, it seems to us, now has a Tashjian problem, a problem confronted by this Court in Tashjian where the State, in that instance, the State of Connecticut, was imposing a restrictive measure on ballot access, and even in circumstances where the party had no interest in the protection that the State was affording it. And so for these reasons we think that the interest in protecting against interparty raiding is insufficient in this case. The interest in an informed electorate, again, while a worthwhile goal, we think cannot be justified here. If the State is concerned about voters voting in an ignorant way, that concern seems improbable, because it is not likely that somebody is going to vote for somebody that they know nothing about, when you have to actually go to the trouble of casting a write-in ballot. If the concern is for the--
Speaker: Isn't it likely that a write-in voter is probably better informed than other voters?
Arthur N. Eisenberg: --It is likely that a write-in voter who goes to the trouble of casting a write-in vote is better informed than other voters. Moreover, if the State were concerned about the body politic in general, that is to say, if the State were concerned that everybody ought to know that are surreptitious write-in candidates afoot, then the State can do, the State of Hawaii can do what approximately 20 other States do: it can require that write-in candidates file a declaration of candidacy shortly before the election. This mechanism satisfies the safety valve concern. It allows write-in candidates to enter the race after the petitioning process is closed where new circumstances or new issues arise, and it provides that flexibility. And if the State were concerned about an informed electorate in that regard, informing the electorate that there are other write-in candidates or indeed there are other candidates beyond those who are simply listed on the ballot, Hawaii can do, as I say, what 20 other States have done. Finally, the interest in protecting Hawaii's runaway election provisions cannot justify Hawaii's policy. To the degree that Hawaii has abolished general elections in these circumstances, there is no occasion to cast a write-in ballot, so this last concern about Hawaii, this concern about their provisions with respect to runaway elections, is irrelevant. In fact, Hawaii's runaway election provisions, provisions which permit a candidate who emerges from the primary election as a victor and unopposed for at least county offices and State legislative offices, not to have to stand for election in the general election, that provision argues more forcefully in favor of a right to cast a write-in ballot in these dispositive primary elections, because in Hawaii, given the pattern of uncontested elections, and given these runaway election provisions, the right to cast a write-in ballot at the primary level is very, very important. With the Court's permission, I should like to reserve--
Speaker: May I ask a question, just to be sure I understand your position. Do you think that Hawaii could prohibit anyone from qualifying for and holding office unless they have followed Hawaii's procedure for getting on the election ballot?
Arthur N. Eisenberg: --If Hawaii had a write-in candidate registration requirement, a requirement that a write-in candidate declare and if the candidate fails to comply, it seems to us that Hawaii can do what these 20 other States do, which is to declare the individual ineligible to hold office. We have no quarrel with that.
Speaker: But if it were a... not a voter standing here today, but someone who would like to be a candidate and hold office, you would take the position that Hawaii's present laws concerning who goes on the general election ballot and therefore who can serve in those offices on the ballot, you would take the position that that is unconstitutional?
Arthur N. Eisenberg: We think to the degree that Hawaii does not provide for the safety valve mechanism of a write-in ballot, to permit the candidate, in Your Honor's hypothetical, to enter the race as a write-in candidate after the petitioning period is closed, which in Hawaii is 60 days before the primary election, 105 days before the general election, we think that Hawaii's provisions are too restrictive.
Speaker: And how many States have similar prohibitions against all write-in? Is that a total of five States?
Arthur N. Eisenberg: There is a total of... there are four States that by statute prohibit write-ins and we are informed that Louisiana, as a matter of practice, also prohibits write-in voting.
Speaker: Is it part of your case that the State has to count these votes or does the State just have to allow them to be cast?
Arthur N. Eisenberg: We think that the State has to count the votes, clearly a vote for a qualified candidate should surely be counted. But we also think that the State should have to count the protest vote, the vote no. The State may be able to put it into a broad category of no votes, but the State has to recognize that there is a body of dissenters out there who don't like the choices that have been provided to them.
Speaker: Why does it have to provide this forum for the dissenters in its election machine? What if the State says, gee, it's just a lot cheaper to buy time for them on some television channel, so election eve, everybody who wants to vote no will be given time to come in and protest?
Arthur N. Eisenberg: Because voting is about voting for or against the candidates who are holding themselves up--
Speaker: Voting is about getting somebody elected. It's about choosing someone to govern you. It's not about protesting it.
Arthur N. Eisenberg: --We think, Your Honor, that it is about both. And in fact, this Court has recognized that the electoral process extends beyond simply choosing somebody who is going to get elected. In Anderson against Celebrezze, this Court recognized the important expressive aspects of the electoral process, engendering new issues into the process, in putting forth new ideas. And so this Court has granted First Amendment recognition to--
Speaker: How did we recognize that in Anderson?
Arthur N. Eisenberg: --Well, because... there was a great deal of discussion of the role of third parties and what the Court called third-force candidacies in talking about the importance of John Anderson's campaign in 1980.
Speaker: Well, sure, but the importance there is that by discussing different issues, you may elect a different person. There is nothing in that opinion that suggests anything about the ability of the people to protest, to use the election as a protest mechanism, is there?
Arthur N. Eisenberg: Not specifically, Your Honor. But the very definition of an election, in our view, embraces the right to choose and again, if there is no meaningful choice, the right to say no, and that right to say no has to be reflected somewhere on the books of the State. It is a very dangerous notion, both in First Amendment terms and in terms of higher democratic values, for the State to try to sweep that dissent under the rug, to pretend it doesn't exist. When Hawaii says to Mr. Burdick, in the interest of promoting consensus, you can vote for only one candidate or not vote at all, consensus may be a very valuable interest, but consensus depends upon consent, and the State has an obligation as well to recognize the dissenting members of its society in the important aspect of voting.
Speaker: Mr. Eisenberg, if the essence of your claim is the right to be heard in saying no, why isn't the statement of no sufficiently recorded simply if the State records a blank ballot? By doing that, they are saying, he has said no to the candidate on the ballot.
Arthur N. Eisenberg: Because a blank ballot signifies more than a vote no. A person can simply fail to vote because they overlooked that particular election on the ballot. The voter may have simply--
Speaker: Yes, and the voter may get the name wrong when the voter writes the name in. I mean, no method of expression is absolutely foolproof, but by and large everybody understands that most people don't cast blank ballots unless they do so for the sake of saying, I don't want to elect any of these people. And isn't that expression recorded when either a blank ballot is recorded as such or the State simply says there were X ballots cast and the total of votes for the candidate is something less than that?
Arthur N. Eisenberg: --We think that... Hawaii does count blank ballots, Your Honor, but we think that a blank ballot is not sufficiently understood as a dissent because there may be a variety of reasons why an individual may leave the place blank. The person may have forgotten. The person may have reached no conclusion, but an expression of dissent is clear and it ought to be recognized.
Speaker: Did you say there were 5 States that currently don't allow write-ins. What is the historical practice? Is it a relatively new phenomenon, not to allow write-ins?
Arthur N. Eisenberg: No, actually, at least one of the States that prohibits write-ins has prohibited it from the inception of the Australian ballot. Most States, as we indicated in our brief, responded to the Australian ballot reform, to the State-prepared ballot, by recognizing that there had to be some sort of safety valve mechanism, both for the reasons I have suggested and to give flexibility to the electoral process, to give the voter an opportunity to choose, but some--
Speaker: And before the Australian ballot, you could always, of course, cast a vote for whomever you wanted.
Arthur N. Eisenberg: --That's correct. That is our understanding of the history. And with the advent of the Australian ballot, the question of how voter choice would ultimately be recognized, and most States recognized that write-in votes preserve voter choice. But a few States did not even at the outset. And in Oklahoma, for example, the interpretation by case law was that a write-in was a defacement of the ballot and therefore voided the ballot. And in South Dakota, I don't quite, Your Honor, remember the basic reason, but it was a turn-of-the-century decision of the highest court in that State. With the Court's permission, I would still like to reserve the balance of my time.
Speaker: Very well, Mr. Eisenberg. Mr. Michaels, we will hear from you.
Steven S. Michaels: Thank you, Mr. Chief Justice, and may it please the Court: At the outset of our argument, we would like to emphasize three very brief points that we would like to carry through our discussion with the Court, and which we would urge the Court to keep in mind as it deliberates upon this important case. First, Hawaii is simply not in a small minority of States when it comes to the issue that is actually presented by this case, because rather than the mere 4 States that Mr. Eisenberg refers to, well over 30 States, and in fact, by our count, 37 States do not permit what Mr. Burdick claims the Constitution compels, namely the right at primaries and general elections to vote for whomever one pleases. Second, if this case is about voting, then this case is governed by this Court's ballot access decisions. Voting is very different from generalized speech. It is the casting of legally effective speech, and under the ballot access decisions of this Court, Hawaii's law is plainly constitutional because viewed as a whole it does not substantially burden Mr. Burdick's ability to cast an effective vote, and if there is any substantial burden, those burdens are justified by Hawaii's compelling interest in narrowing the field of eligible candidates for the general election and promoting an informed vote. And third, to the degree Mr. Burdick is saying that Hawaii need not seat a write-in candidate who would get a certain number of votes, but that nonetheless, Hawaii must count up and publish that speech, this case is not governed by the questions of substantial burdens or the issue of compelling State interests. It is merely controlled by the question established by this Court's public forum cases, namely whether Hawaii has acted neutrally in excluding the purely advisory question from the ballot, I quote, if you don't like all of the people on this list, who would you vote for? That advisory question Hawaii has excluded in a neutral fashion, and because the answer... that answer to the public forum question runs in our favor, Hawaii's law is constitutional and Mr. Burdick is entitled to no relief from the Federal courts. As the argument in the briefs and the discussion has established, it has to be the case that States have the authority under our Constitution to exclude the ability of voters to cast write-in votes for broad classes of candidates. In fact, Mr. Burdick really doesn't contend otherwise. He says that we need not seat ineligible candidates. We need not seat primary losers, and we need not seat late filers. And if one just looks, for example, at what the right to vote means in our country, it has to mean that. Because in our Nation, and as this Court has defined what voting means in a constitutional sense, the right to vote is preservative of other rights, as this Court said in the Yick Wo v. Hopkins case, because the right to vote is legally effective speech. It is the right, when joined with other votes, to transfer power. Now it is true that not all votes end up in seating a particular candidate, but the reason politicians worry about votes as opposed to just ordinary speech, which is nonetheless very important, is the fact that votes, if there are enough of them, put you out of a job. We have eligibility rules in our Nation for a variety of reasons. We have them because some people, we have determined as a constitutional matter, don't have enough experience. But we also have eligibility rules that would serve to eliminate classes of candidates because they have too much experience, term limits for example. And one of the great ironies of this case, if write-in voting really means the right to vote for whomever one pleases, is that the term limit movement, which is a widespread movement across this Nation, would be shut down at the outset as a matter of constitutional law. And that--
Speaker: Why would that be-- --I don't understand that, explain that to me.
Steven S. Michaels: --Well, the petitioner, we think has essentially conceded that Hawaii need not seat anyone who in the 1994 election would vote by write-in for Governor Waihee. His time has come to an end at that time, and for that reason, the term limit is an effective ban that Mr. Burdick agrees Hawaii can effectuate by prohibiting votes for that category of candidates. What he is saying, Hawaii must count up all the protest speech that would be cast at that time for people that want Governor Waihee to keep serving, but we need not seat Governor Waihee for a third term. And what we are contending to the Court is that that protest speech is a public forum question. It is not a voting question because what is being cast by that protest speech is not a vote at all. I hope I answered the question.
Speaker: You haven't at all. You agree, I think you stated expressly in your answer that you understand that they are not claiming that the person for whom the write-in vote is cast must by the same reasoning be seated in office if there is a sufficient number, or would otherwise be a sufficient number of write-in votes to elect the person. You understand them explaining that?
Steven S. Michaels: We understand that concession.
Speaker: As long as that concession is made, how does their argument threaten the term limit? In other words, the former governor isn't going to have to go back to the State House on their theory, it is just that everybody is going to know that a lot of people wish he could.
Steven S. Michaels: That's true... well, we do accept the concessions. I suppose my argument was even if they hadn't conceded that, they would have to concede that.
Speaker: Maybe your argument was just hyperbole.
Steven S. Michaels: There is probably a little bit of that on both sides, but I accept the criticism.
Speaker: I wasn't worried about the multiterm congressman, I was worried about Donald Duck. That is really scary. [Laughter]
Steven S. Michaels: The point that we would emphasize to the Court also in considering this case is that this is very... at its outset, a facial challenge to Hawaii's ban on write-in voting. The petitioner, even in the 1986 State House race that was before the court, never said who he wanted to vote for, never said whether the person he wanted to vote for was in fact Donald Duck or someone who was not eligible or so on. And under that situation, the Court should not be speculating as to all the possible ranges of situations in which our law might operate in a tough manner. On a facial challenge, you look to see whether there is any circumstance in which the law can be validly applied, and the petitioner has virtually conceded that there are large numbers of cases in which it can. Secondly, the petitioner did not make any record below concerning the burden that our law may impose upon him. There was none of the typical testimony or evidence that one finds in the voting cases that have come up through the courts of appeals, that we really tried to get the signatures but we couldn't; it was too hard to get the signatures at that time of year. None of that... there is no such testimony in this record. And the record from our side of the case shows that there are large numbers of third parties that exist and have existed in Hawaii and large numbers of nonpartisan candidates who make it through the primary stage. Our Hawaii law is structured around a four-part process; the party petition process which commences with the filing of the party petitions in April; there is the candidate filing deadline in July; there is the primary in September; and then the general election. And Hawaii's law should be particularly amenable to being sustained by this Court because it creates two cumulative opportunities for voters like Mr. Burdick to get the candidates they want on the ballot. We do have a petition route, and you can guarantee access for your chosen candidates by filing the petitions equal to 1 percent of the general electorate vote by April, and we have a primary route. And the routes are structured in a manner so that those persons who try to file for that automatic access in April have that 90-day period between the April deadline and the July candidate filing deadline in which all of the litigation that typically occurs about petitions must occur. The lieutenant governor must make his decision on the petitions within 30 days. There is an administrative appeal authorized under our little APA for the last 60 days; and for those persons who are disqualified from that automatic access by the April deadline, they have the right to bail out and get back into the game by filing for a nonpartisan slot. And what we would emphasize to the Court also is that you can file a party petition even if you are just a single candidate. This is not the situation that the Court referred to in Storer v. Brown where you have to bring all this party baggage with you to file at the April deadline.
Speaker: Could you explain something to me, General Michaels, just, your primaries are September?
Steven S. Michaels: That's right.
Speaker: And your general election is in November, right?
Steven S. Michaels: Right.
Speaker: What safety valve is there for the unlikely contingency that on October 1st the two principal candidates are either killed in an airplane accident or suddenly revealed to be armed robbers or some very dramatic thing that would convince 90 percent of the people in Hawaii they didn't want to vote for him. What can be done?
Steven S. Michaels: Well, Your Honor raised two hypotheticals and the statute deals with them differently. In the case of death, withdrawal or substitution, the relevant statutes are Hawaii revised statute sections 11-117 and 11-118, which appear in our brief. And the way those work for those three categories of postfiling events, there are rules of succession. Within a certain number of days, the candidate can withdraw and the party can actually get a new name on the ballot. It doesn't work for independent candidacies because of the way the independent candidacies are structured, that is it--
Speaker: Let me just change the question a little bit. Assume they don't withdraw. The two candidates that survived, or just some very dramatic incident that makes them extraordinarily unpopular with the electorate, they are revealed to have been involved in something very unusual, is there any safety valve? I mean, you don't have a write-in, so is there any safety valve by which some other candidate could appeal to the electorate?
Steven S. Michaels: --The law does not allow that, and if I may respond further to explain why, Hawaii's law is set up sort of as a corollary to Abraham Lincoln's famous saying, you can fool all of the people some of the time, and some of the people all of the time. Our theory behind our law is that you are going to fool a lot less of the people all of the time if there is mandatory competition between the candidates. And it is true that there is a gap time at which things can't be changed, and at that point the processes of impeachment and recall are the recourses for the electorate. This is a problem, of course, that we have in between elections generally in this Nation.
Speaker: Of course, that startling disclosure might just as well occur the day after the election as a week before the election and you are still in the same situation. That is a problem that I guess can't be avoided.
Steven S. Michaels: It is a problem of republican forms of government, small r.
Speaker: But it is a problem that every State that has write-in ballots has a solution for it up to the election date.
Steven S. Michaels: Well, not in 35 States because, or at least in the big block of 27 States that have filing deadlines. In all of those States the legislative judgment has been made that at some point we are going to flush the candidates out, and in fact, if I just might focus on a few of the States that have filing deadlines, some of them do come fairly early in the process. Florida comes 100 days. That is our deadline. Arkansas is 60 days. New Mexico, 56 days; Texas, 55 days. We admit, other States make different judgments about when that filing deadline should occur.
Speaker: Are those filing deadlines, means you can't write-in for the candidate unless he meets that deadline?
Steven S. Michaels: That's correct, sir. Our basic, our system is structured in a way so that not only can an individual get on the ballot through the automatic access in April, because you don't have to have party committees, party officers, or rules. The statute admonishes you to file them if you have them, but if you don't have them, you won't be kicked off the ballot. But it also allows the party candidates whose petitions fail to get on the ballot through the nonpartisan process... there is no disaffiliation requirement under Hawaii law, and so it is truly a case where Hawaii has two complementary and each equally available systems for getting on to the ballot. We submit to the Court that under this Court's cases in Munro v. Socialist Workers' Party is we submit our best case, that our system is wholly constitutional, and there is really no argument by the petitioner that it is not. There are a couple of footnotes in the brief criticizing parts of the law, but there is no extended argument looking into the Court's cases and what the Court has decided in these cases, to challenge as a constitutional matter our law. And if one looks to the principles that the Court adopted in the Munro case, that access at the primary stage alone would be sufficient, we have that automatic backup that you can get into at April with a 1 percent signature requirement that is equally sufficient and makes our law doubly good. The Ninth Circuit in this case therefore has a right to say that there wasn't any substantial burden on Mr. Burdick's constitutional interests, and the Court need not get to the second step of the analysis, as to compelling interest, except perhaps to note that there is a rational relationship between the laws, the goals that we have, and the law that is adopted. And we think that that should be the proper way for the Court to decide the case. But even if one gets over that hump, Hawaii's law is backed by compelling State interests at every turn that are narrowly tailored to the way that the law is written. You simply cannot have the kind of informed voting that Hawaii mandates unless you have deadlines that stick, and although Mr. Burdick concedes that the sore-loser interest is only a narrow one, we urge the Court to look at Judge Easterbrook's opinion in the Seventh Circuit case. A lot more people than just the candidates are mad after the primary. Our eligibility requirements, those are conceded to be valid and can be enforced, and at the primary there is an important interest in respecting the party's ability to, in a sense, have their own house in order. Now, Mr. Burdick says that it is enough just to say that in Hawaii our laws provide that you have to be a member of the party in order to be a party candidate at the primary. But time is really of the essence in election law, and the point we wish to make with respect to the party raiding argument is that the parties need not just to have this requirement out there, but they need the time to make that requirement effective by looking at the filing deadline to see if there really is a bona fide person who is a member of their party running in the primary, and then to go to court and to use the time we provide to go to court, if in fact they have a beef about that. And as far as the runaway primary winner argument goes, it is true that in the Federal races and State-wide office, a person isn't automatically seated. But in that instance, as I explained to Justice Stevens, we have provisions for succession in the case of death, withdrawal or substitution, and those rules of succession respect the primary mandate, and the--
Speaker: Mr. Michaels, let me ask you about something you covered, I believe a moment ago, and that is the interest against party raiding and the necessary time for the party to go to court. I don't think I quite followed that. Could you expand on it a little bit?
Steven S. Michaels: --Our interest at the primary stage in banning write-in voting, in part, not... we have interests that cover it otherwise, but in part is justified by a party raiding interest. In avoiding the situation where you have a Democrat in sheep's clothing, as it were, running in the Republican primary and then strategic voting by Democrats basically, you get a weak Republican candidate to run against the Democrats. This Court has recognized that as an interest. Hawaii, in our statutes--
Speaker: You could accomplish that, of course, by just providing that only registered voters could vote in the primary of the party, couldn't you?
Steven S. Michaels: --Only registered Republicans.
Speaker: Yes, only registered Republicans vote in the Republican and only Democrats--
Steven S. Michaels: That's true that that is one way, but we have chosen to balance the question a little differently. As a matter of constitutional law in our State, we do have an open primary, and this is recognized because for a large number of races the Democratic primary was determinative, and it remained so in large numbers of races. But for the protection of the Republican Party and the Libertarian Party and any other party that exists in Hawaii, what we do is two things. One, we say that the candidates who run in the primary have got to be party members; and secondly, we provide that 60-day period between the filing deadline and the primary date for the party itself to go to court and say, this person isn't really a Republican or this person is not a Democrat or not a Libertarian or whatever. And under Mr. Burdick's theory of write-in voting at the primary, what he is saying is that you can have last-minute nominations by write-in. If he is really serious about that, that period of time that the State gives to the parties to go to court and effectuate their own interests is gone, and that is why we believe we have a legitimate narrowly tailored party raiding interest.
Speaker: --So a registered Democrat could not run in the Republican primary in Hawaii?
Steven S. Michaels: That's correct. In large measure this case is not about write-in voting at all, because Mr. Burdick has said that there are broad classes of candidates where he is asking not that a candidate be seated or that politicians need worry about write-in votes in the manner that I described before, but he is asking that Hawaii, at its own expense, count up what he writes on his ballot and publish it in the lieutenant governor's reports. If I could just, at this point, direct the Court's attention to page 71 of the JA, these are sample ballots and this is the way the ballot looks to the voter on election day. These were the facsimile ballots in the 1986 election. And we can state to the Court with confidence, it is no crime in Hawaii to write in on your ballot, but we are not going to count it up and we are not going to publish it, and that is the law in Hawaii if you write a message on your ballot. What we are contending under that set of undisputed facts is that this is a case about a claim for State subsidization of protest speech. Actually, it wouldn't matter if Mr. Burdick wrote in and said the lieutenant governor is a great guy. We are not going to publish that either. So whether it is favorable or not favorable, we just don't publish what is written in on the ballot if it is not punched and executed in a manner required by law. And under the Court's decisions, the Cornelius case is certainly a very powerful case for us. This is a matter that the State can regulate, how it publishes the... and what questions it will address at the ballot. Judge Posner in the Georges v. Carney case put it very well, a State could decide to have the advisory question of who if not these do you want regardless of whether they could be seated, but Hawaii, along with a large number of States has decided not to do that, and that is a legitimate decision to make. I might just add that in that regard, our law would also be justified as a time, place and manner restriction at the ballot because what you are saying, if there is this right to cast this advisory speech, is that you must double the election ballot, that there is an advisory question tacked on to every single race from governor on down, and that conceptual overcrowding of the ballot is something that Hawaii has an interest in avoiding. And unless the Court has further questions, we rest on the briefs, and we ask the Court to affirm the judgment of the Ninth Circuit.
Speaker: Very well, Mr. Michaels. Mr. Eisenberg, you have 6 minutes remaining.
Arthur N. Eisenberg: Thank you, Your Honor. In response to Justice Scalia's expressed concern about Donald Duck, the State may have some dignitary interest in not recording in its books the vote for Donald Duck, but it is our position that that vote should, at the very least be recorded as a vote no. And a vote no is not the same as a blank vote because the blank vote does not necessarily signify that the person is voting against the specific candidate, in this instance, who is running on the ballot. In talking about--
Speaker: I am troubled that the case might turn on that. Do you think the case might... if we disagree with that proposition, do you lose the case?
Arthur N. Eisenberg: --The proposition that--
Speaker: That a no vote is qualitatively much different than a blank ballot?
Arthur N. Eisenberg: --We think Hawaii's deficiencies are twofold, Your Honor. I think the answer to your question is we don't lose the case because Hawaii's law is deficient in a second way. Hawaii essentially closes off, as we said, the political process to write-in vote, and even for qualified votes, so that if somebody wants to vote for... not express a no vote, a protest vote, but vote by virtue of a write-in for somebody who is perfectly qualified to hold office, we think Hawaii's law which closes off the process 60 days before the primary election and 105 days before the general election is deficient on that ground as well. The total prohibition simply cannot be sustained. On that issue, there was some discussion with Mr. Michaels about filing deadlines with respect to those States that require a write-in candidate to register shortly before the election, and Mr. Michaels shows several States which have quite long filing deadlines. There are other States that we could have chosen that have quite short filing deadlines; California requires filing by write-ins 2 weeks in advance of the election.
Speaker: But under your argument all the States with a long filing deadline for write-in candidates would also be violating the Constitution.
Arthur N. Eisenberg: We think that those States are subject to the Anderson against Celebrezze requirement, but the fact is that most States have filing deadlines a week or two shortly before the election. In Arizona it is the Wednesday before. In Illinois it is the Friday before the election.
Speaker: You say even those are invalid.
Arthur N. Eisenberg: No, no, we do not say that those are invalid. We think that those restrictions shortly before an election, the filing deadline is reasonable, and the State can say if the write-in candidate does not file, that write-in candidate is not eligible to hold office. If the deadline is not unreasonably long, we say that those filing deadlines are perfectly reasonable. The only then remaining question is, what does the State do with a vote for somebody who has not registered? What does the State then do with the vote for an unqualified voter? In that circumstance, the vote in our view is a protest vote, is a vote no, and in that circumstance, the State must still record the vote as a vote no, but we have no problem with filing deadlines for write-in candidates that are reasonably imposed.
Speaker: Well, you do. You say that even those votes for candidates who haven't met the filing deadlines have to be counted.
Arthur N. Eisenberg: Have to be counted as a no vote; that is different, we think, than a vote for a qualified candidate. Our view is that if an individual votes for a qualified candidate, that must be counted in a quite serious way to effect legal change.
Speaker: These States that have 1 or 2-week filing deadlines, do they now count those votes no for people who haven't--
Arthur N. Eisenberg: Some States do and some States don't. I think as we have surveyed the statutory framework, most States say the candidate who fails to file properly, shortly before an election, is ineligible to hold office and the vote won't be counted. But there are some States, for example, Georgia, that has a filing deadline that continues to count the votes, and in fact, there was an unreported Federal district court decision in the 1980s, James against Falagant, where the voters voted into office, in essence, an individual who did not properly register. And the question in that circumstance was whether Hawaii's prohibition against that individual from serving had to be recognized, or whether, when the voters vote in somebody who hadn't complied with the filing requirements and therefore was ineligible, whether that person had nonetheless to be seated, and the Federal district court concluded that the ineligibility would stand and that the individual wouldn't be seated, but the vote is recognized as a protest vote.
Speaker: --You didn't disagree with that?
Arthur N. Eisenberg: No, that in fact is the appropriate approach we think. What is at stake in this case is the right of the voters to choose, petitioner's right to direct his portion of sovereign power to the candidate of his choice. This right, we say, is not an absolute right. Many States regulate write-in voting in a variety of ways, with specific focused concerns, and those regulatory measures at not at issue in this case. What is at issue is the application of Hawaii's total prohibition against all write-in voting in all elections and under all circumstances. That total prohibition, we think, cannot satisfy the standard articulated by this Court in Anderson against Celebrezze. That total prohibition cannot be shown necessary to the advancement of any substantial governmental interest, and the decision of the court of appeals should be reversed. Thank you.
William H. Rehnquist: Thank you, Mr. Eisenberg, the case is submitted.