William H. Rehnquist: We will hear arguments next in No. 85-656, Ralph Munro, Secretary of State of Washington, versus Socialist Workers Party. Mr. Johnson, you may proceed whenever you are ready.
James M. Johnson: Mr. Chief Justice, and may it please the Court, the State of Washington has a uniquely open election system, a system unusually hospitable to new and minor parties and independents and their candidates. Washington voters wishing to exercise their right to politically associate through these vehicles easily organize and choose their candidates. Those candidates have long been automatically placed on the Washington elections ballot. After a 1976 election, with the most crowded ballot in Washington's history, the Washington legislature decided to exercise what this Court has called a state's undoubted right to require candidates to make a showing of substantial support in order to qualify for a place on the ballot. The Washington legislature, by statute, placed all candidates on the primary ballot and added a requirement that any candidate not able to attract the votes of 1 percent of the voters would not remain on the ballot a second time. It is that 1 percent requirement to remain on the ballot a second time that is challenged here by a candidate placed on the Washington primary ballot who got fewer than 600 votes, less than one-tenth of the 1 percent, and thus was not remained on the... did not remain on the Washington ballot a second time in the general election. I shall explain first the Washington experience and the election with its crowded ballot in 1976 leading to this change, then telling you why the 1 percent is consistent with this Court's numerical definitions of substantial support and argue under this Court's decision the Washington requirement is neither unconstitutional per se and is less than the numerical test that this Court has approved, such as the Jenness v. Fortson, a 5 percent of voters test, arguing that it is less burdensome on minor parties and serves to improve the political debate which is the constitutional issue before the Court; finally... and also that the Washington statute by cutting off some few candidates avoids subsidizing hopeless candidates, as this Court recognized in the different case of Buckley v. Valeo was appropriate. Finally, I can show--
William H. Rehnquist: Subsidizing meaning printing, including their name on the ballot?
James M. Johnson: --There's more than that in the State of Washington, Chief Justice Rehnquist. The printing on the ballot and the counting of votes is one issue. Washington is also unique in the states that we print and distribute to every residence in Washington a voter's pamphlet and candidates' pamphlet for publicizing the election and the candidates, at considerable expense. In that additional regard, I think, we are subsidizing hopeless candidates by placing on the ballot those candidates that have not and will not receive any substantial support.
John Paul Stevens: Is that kind of information disseminated in connection with the primary as well as the general election?
James M. Johnson: It is not, Justice Stevens. It is only disseminated in conjunction with the general, and may have been one factor in the legislature determination to move this substantial support determination to the primary. I referred to Washington's uniquely open system. I shortly explain, and explain the relevance of this system. In Washington there is no party registration. There is no identification of voters by party in the State of Washington at all. The voting is a blanket primary, we have referred to it, and the general is the same. Under a blanket voting system each Washington voter may vote for any candidate for any position irregardless of party affiliation. One vote per race, of course. In a case tomorrow arising from Connecticut you will hear debated the merits of open versus closed primaries and restrictions on voters, how they vote by party. In Washington we have no such system. The Washington system is more open than the open primary. This has direct relevance, of course, to using a primary vote requirement for determining substantial support, since any Washington voter attracted to the votes can vote for any and all candidates. For example, a Washington voter may choose to vote for a Socialist Worker candidate for governor, a Republican candidate for U.S. Senate, a Democrat candidate for their local legislatures, et cetera, down the ballot. Thus again the primary test is much easier than it would be in most states with either a closed or open primary in which party affiliation is somehow tested first before the voters can exercise their option. Finally, in Washington if any candidate is not on the ballot a Washington voter can write in any candidate with the sole exception of a sore loser of a major party primary. The Court of Appeals decision in this regard is just confused. The District Court finding of fact and conclusion of law at JSC 5 is accurate. The Washington statute allows write-ins with the sole exception I have mentioned. If not on the ballot, of course, in the Washington system the voters have made that decision. In 1976 the voters had lots of options to choose from, culminating the preceding four elections' increase in the number of independent and minor candidates. The 1976 election had 12 parties, one of which, the OWL, Out with Logic, On with Lunacy, Party, was avowedly frivolous and ran a statewide slate. There were numerous candidates, however, as noted in our brief, 65 of them on that ballot. Important to note, though, is that of these--
William H. Rehnquist: Sixty-five candidates for what, Mr. Johnson?
James M. Johnson: --Sixty-five candidates for statewide and Congressional races, Your Honor, Mr. Chief Justice.
William H. Rehnquist: So those were not just local races.
James M. Johnson: That does not include local races, no. That is summarized in the appendix. It is a confusing number, confusing in this particular regard. It includes all the Congressional candidates, and every Washington voter did not have access to those, so each voter would have faced probably 12 fewer, and then added to the... at the end of the ballot would have been the local races together with such issues as constitutional and levy elections. It was a long--
William H. Rehnquist: How many candidates were there for Governor?
James M. Johnson: --There were eight candidates for Governor, Your Honor, Mr. Chief Justice, and a good example of showing that the candidates, the non... the minor party independents did not attract any substantial support. Of those six independent and minor party candidates, none of them got 1 percent in the general election. Four of them, including the Socialist Workers Party candidate, got less than.3 percent of the ballot. This, by the way, was also consistent with the preceding history in Washington of minor parties and independents. As noted in our reply brief, since the Depression, only two such candidates for statewide office had ever received even 1 percent of the vote. The Washington legislature reasonably then saw this unduly lengthy ballot, and as we have discussed, Mr. Chief Justice, with regards to the voters' pamphlet, I think reasonably concluded that in some regard the ballot placement and the voters' pamphlet were subsidizing hopeless candidates, and the "subsidizing hopeless candidates" is your language--
Thurgood Marshall: Well, of course, that could be remedied by not printing them.
James M. Johnson: --Yes, but much to the detriment of the voting system, at least in the judgment of the legislature and the citizens of Washington, Justice Marshall. The voters' pamphlet serves to publicize all the election as well as helping--
Thurgood Marshall: I don't think it is something to keep emphasizing. You mention it every other minute.
James M. Johnson: --Justice Marshall, as in Buckley v. Valeo, I think the public is not obligated to undertake public financing of elections. That quote was extracted because I think the concepts are similar in that one regard. The encumbering of the ballot, however, remains irregardless of whether a voters' pamphlet is chosen.
William H. Rehnquist: Mr. Johnson, I feel bound to inform you that there is no word in the English language "irregardless". The word is "regardless".
James M. Johnson: Thank you, Chief Justice. Thank you. And regardless, the problem of an encumbered ballot as existed in 1976 remains. The Washington legislative solution to that problem and to this Court's then recent decisions in Jenness and American Party of Texas, recognizing that the state had the authority to remove frivolous candidates or remove those that had no public support, the legislature reacted in these ways. All candidates were placed on the primary with an essentially concurrent filing for minor party and independents and the major parties. That is, the convention for minors and independents is a Saturday, Monday the filing begins, and on the Friday of the same week the convention certificate together with the major party are closed. One percent requirement was imposed. Any candidate not getting 1 percent would not remain on the ballot. Important to note, this was down from the preceding 5 percent requirement. The preceding 5 percent, of course, applied only to major parties who in the earlier system were the only ones on the primary ballot.
John Paul Stevens: And of course it is 5 percent of something different, isn't it?
James M. Johnson: No, the 5 percent before, Justice Stevens, was also applied to the primary vote.
John Paul Stevens: I thought it was... oh, I see.
James M. Johnson: This was in the Washington system before the legislative change.
John Paul Stevens: The 5 percent was required for the major party candidate to got on the ballot?
James M. Johnson: It was. A major party candidate not getting even 5 percent would not remain on--
John Paul Stevens: Of course, that would never happen, I don't suppose.
James M. Johnson: --The record here does not show that.
John Paul Stevens: Does the record contain examples of this pamphlet you describe as being sent out to the voters?
James M. Johnson: I don't believe there is such in the record, Your Honor.
John Paul Stevens: Is there any reference to it at all in the record?
James M. Johnson: There is reference in the legislative history.
John Paul Stevens: No, I mean in the record before us.
James M. Johnson: I think there is not.
John Paul Stevens: So you have just told us about it for the first time?
James M. Johnson: Pardon? It is, however--
John Paul Stevens: Yet this was one of the major things they were saving in enacting this statute?
James M. Johnson: --I think it is in the legislative history, A, Justice Stevens, and it is a statutory requirement of which I think the Court can take judicial knowledge. In Washington Code 2981 140, which as I noted requires its preparation and distribution to all residences.
Antonin Scalia: Could you tell me why it is that in running in this primary the independent and small party candidates are not really running in the primary? The system is set up so that they have to be nominated by some sort of a convention system previously. And that is one of the complaints here, that it is a primary that... for them it's a primary that really isn't a primary.
James M. Johnson: Justice Scalia, I do not understand... first, the nominating convention requirement was not challenged below, nor do I understand the party here to object or to prefer primary nomination for its candidates. In this regard, the minor parties have an advantage over major parties, and it makes some sense for minor or new parties. They can control their own candidate rather than going through the blanket primary system to allow all Washington voters to choose their candidates.
Antonin Scalia: I see.
James M. Johnson: I think, but Mr. Smith may best address whether this is preferred by the party.
Antonin Scalia: I am still curious as to the reason for it. Is that... was that the reason, to prevent party cross-overs from destroying small and independent parties?
James M. Johnson: The legislative record does not show that.
Antonin Scalia: You don't have any guess as to what it was--
James M. Johnson: Printed as A1 in our reply brief, in that appendix the legislative memorandum mentions the question of minor parties being allowed to not control their own candidates and convention, which suggests to me the argument I have just advanced, that what was intended was to let them at the smaller stage not have the general election... the major parties in Washington sometimes object to the primary system we have, which allows all voters to determine a party's nominees. And I think the analysis is more likely to be applied in a small and growing party that would like to control its own candidates.
Antonin Scalia: --But you understand that one of the arguments being made here is that since there are not two candidates competing, why would you expect voters to come out to vote for their--
James M. Johnson: I do understand that, and I think, Justice Scalia, the answer in part is the Washington system. The primary serves... on the primary ballot in Washington are not just candidate nominations but local races, nonpartisan races, together with local issues such as levies and those kinds of things. The burden imposed on a minor party candidate is exactly the same as any candidate. They have to bring out voters and get them to vote for them. In the Washington system the beauty for a minor party is that every voter that comes to the polls can vote for the minor party candidate, as I mentioned. In a blanket primary they don't have to just attract... any voter that walks into that poll can vote for one of the candidates. Typically, by the way, the minor party doesn't run a whole slate of candidates. In this regard it also has two advantages over the prior system. First, the old system had the convention the same day as the primary, and so you had... a minor party adherent had to give up their primary right to go to the convention. In this regard it is a direct benefit. Secondly--
John Paul Stevens: --What did they give up? I don't understand.
James M. Johnson: --In the old system, Justice Stevens, you had to go to the convention the same day as the primary and could not vote in the primary.
John Paul Stevens: You mean the person who was a delegate to the convention couldn't vote?
James M. Johnson: Yes.
John Paul Stevens: Why couldn't he? If the convention was held in his home town, couldn't he do both?
James M. Johnson: The statute prohibited it.
John Paul Stevens: Oh, I see. But why would he want to vote in a primary if... I don't understand--
James M. Johnson: There are lots of other issues on the primary, Justice Stevens, than this nomination.
John Paul Stevens: --Oh, I see.
James M. Johnson: Typically a small party, and this case has several examples, only nominates for a couple of races. Under the old system--
John Paul Stevens: But you have other issues like bond issues and things like that on your primary ballot?
James M. Johnson: --And you can go to the primary and vote for the Socialist Workers' candidate for Governor or legislator and also vote for the other party--
John Paul Stevens: It occurs to me that the 1 percent requirement could be quite different in an election which had, say there was no contest for the Democratic nomination and no contest for the Republican nomination. It might be rather easy to get a 1 percent then, but if you have a big party fight going on and a lot of other issues, the 1 percent would then be ten or fifteen times as hard to get.
James M. Johnson: --Justice Stevens, it depends on the position. In our most recent race--
John Paul Stevens: It depends on what the issues are at the primary election.
James M. Johnson: --And the position. In our most recent primary, the hotly contested race for U.S. Senator, but if the Socialist Workers had a candidate for a legislative race any place down the ballot, all the voters that are attracted to that hot race, as you called it, could vote for that position also. It has... the system has another advantage over either the petition or the prior system in that it added the minor parties and independents into the political debate. That is what we are talking about here, is broadening the political debate, and under the prior system or any other system the minor parties and independents have no role in the period of debate in Washington leading up to the primary because they are not on the ballot. In that regard the primary is actually monopolized by the major parties if they are the only ones on the ballot. By adding them into the ballot there is at least this advantage, if not to the party, and I think it is to the party, there is the advantage to the voters in the political debate that they are allowed in. The primary system that it is not per se unconstitutional, we can say at least from this Court's summary affirmance in Allen v. Austin in 1977 of such a system. Indeed, since that was summary affirmance, I suppose that is the most I can say, that it is not unconstitutional per se. That it is numerically consistent with the then recent cases of Jenness v. Fortson and American Party of Texas we have pointed out in the table in the brief, the example being the Jenness system, in which this Court approved a petition requirement of 5 percent of the registered voters in Georgia. Such a requirement imposed in the State of Washington would mean 122,000 signatures to get the statewide gubernatorial candidate of a minor party on the ballot in Washington, as contrasted with the 9,100 required as 1 percent of the primary vote in 1984. Now, it may be more difficult to get one voter out to vote in a primary, but I submit it is not 13 times more difficult to get a voter than it is to get a petition. I further argue that the political debate benefits by the choice. In this regard the primary system is better than a petition. After all, the petition, once filled in, the petitions are discarded. The buttonholing of candidates, which one of the amicus... excuse me, the buttonholing of voters, which one of the amicus briefs suggest is a real easy way to get petitions that is probably true, but it adds little to the political debate, as contrasted with the Washington system, as I have noted, which encourages the same time and money and effort to be expended instead in attracting voters to the primary and getting them there to vote for their candidates. The limited resources of a minor party, I suggest, are better expended in getting voters out and getting them to the primary than they are through this, to us, to Washington, basically meaningless petition-gathering proposition, meaningless in the sense it doesn't really add to the political debate, which is the issue, the interest that we are trying to protect. I also--
Byron R. White: Why, then, do you suppose the minor parties have had such bad luck under this new law?
James M. Johnson: --There are three reasons, and by the way--
Byron R. White: That is true, isn't it? Weren't they more frequently on the ballot before this law was changed?
James M. Johnson: --Justice White, I think the Ninth Circuit says that, and I think they are applying the wrong historical analysis. They improperly limited their consideration to only statewide offices and only minor parties, implicitly assuming that the right involved is a right of candidacy.
Byron R. White: To the extent their analysis... they should have looked more broadly, but their narrow look was correct?
James M. Johnson: The statistics were correct, with the exception that they were numerically wrong about independents. Independents statewide have actually placed four out of five candidates on the general election.
Byron R. White: You mean since the law was changed?
James M. Johnson: Since the law was changed. What we are looking for, though, is not... we are not trying to accommodate rights of candidates, because most recently in Clements v. Fashion, this Court said there is no right of candidacy, and surely not a right to have your name placed on the general election ballot.
Byron R. White: I wasn't suggesting that the experience of the... that the state had to allow the same access to the general ballot as they had had before this new law.
James M. Johnson: Then it is a slight reduction.
Byron R. White: The question is whether this new law is constitutional.
James M. Johnson: Yes, Justice Stevens, but I think what we are looking for in the historical material is... we are analyzing for the rights of the voters so we are--
Byron R. White: I feel obligated to tell you that my name is White.
James M. Johnson: --I am sorry. 0 [Generallaughter.] Thank you again for the correction. Justice White, what we are seeking here, though, is an index to the health of the political system, aren't we? We look at the historical information to see whether Washington's system allows major parties to monopolize the debate, or do we have a healthy system which allows and even encourages dissent. Put another way, again, do the major parties monopolize debate in Washington? The answer is clear from the record. The wide-ranging debate is alive and well in Washington. In 1984 the--
William H. Rehnquist: Maybe the Socialist Workers Party position would be that the issues that are alive and well and being debated in Washington aren't the ones we want to debate. We have got some other things that may seem odd to a lot of people, but we still would like to mount our little campaign.
James M. Johnson: --And we think that is very important. Washington thinks that is very important, Chief Justice Rehnquist, and protects it, first through allowing the party nearly automatic access to the primary, and secondly, the figures will show that even this party has consistently placed candidates. It is true that they have not been successful in attracting votes in the statewide races. In the '84 election their Governor candidate did not qualify, but their candidate for U.S. Representative did qualify.
William H. Rehnquist: Where did they get their votes from in King County and Takoma?
James M. Johnson: I think they have conceded in their brief this party has its major... if there is a base of adherence, is in Seattle-Takoma metropolitan area. I am sorry about the name error. To answer you first question, why they don't qualify, I think there are three reasons. The Court has said we are entitled, the state is, to ask for reasonably diligent candidates. Two, they may have a message the voters just do not like. Or, three, they may have unattractive candidates, and on this record we don't know exactly why Mr. Peoples didn't qualify, but the record does show they expended $1,900 on a statewide Senate race in the State of Washington, an insignificant amount, and if it reflects the support that they could draw, a financial support, the effort, I say, was insignificant. As you have noted, their support is concededly in the Seattle-Takoma area, where all that effort was expended, instead of broadening their base to the whole of the state. Finally, the record also shows the affidavit at C13 was their affidavit setting forth all the electoral efforts. Four out of five news releases they put out, four out of five were about this case.
Sandra Day O'Connor: Mr. Johnson, what is the state interest you rely on?
James M. Johnson: Primarily what this state, this Court has conceded the state's interest in requiring a showing of substantial support before a candidate appears on the ballot. However, Justice O'Connor, we allow the candidate on the ballot the first time, the primary, without such a requirement. In that regard I believe the Washington system treats them better, them being minor parties, better than most systems.
Sandra Day O'Connor: So you rely only on a purpose of the state of requiring substantial support.
James M. Johnson: And that purpose serves two--
Sandra Day O'Connor: And what underlies that?
James M. Johnson: --That purpose serves two interests. First, avoiding the unduly lengthy laundry list ballot that this Court has referred to with the possible effect of confusing voters and allowing frivolous candidates--
Sandra Day O'Connor: Well, under your system the ballot is so long and complicated already that that might not be a very persuasive argument. What else--
James M. Johnson: --It was a persuasive argument to the Washington legislature, Justice O'Connor, and I think they have a right under this Court's decision to respond to that. Secondly, as I have discussed with Justice Marshall, in some regard placing candidates that history shows have never attracted substantial support, works to be subsidizing hopeless candidates, nor is the state or the government obligated to subsidize these hopeless candidates. We can require them to exercise some reasonable diligence and expend some effort. Ultimately, then, to the extent that a few of these candidates do not remain on the ballot, and as we note in our reply brief, the summary numbers are that of 48 candidates, independent and minor party, since the '76 election, since the '76 changes, I believe the number was 37 of them have remained on the general election ballot, and again, they are already on the ballot in the primary and thus afforded the opportunity to participate in political debate through that part, and most of them, albeit usually for the U.S. Representative and local races, including Washington State legislative, most of those candidates have remained on the ballot. The voters determine who stays on the ballot, and that is an important part of the democratic system. The constitutional objective or test was differently stated by the majority and the dissent in this Court in your 1983 Anderson v. Celebrezze case, the majority saying the primary values protected by the First Amendment here are a commitment to debate on public issues, uninhibited, robust, and wide open, not monopolized by the existing political parties. The dissent differently stated that a court's job is to ensure that the state in no way freezes the status quo but implicitly recognizes the potential fluidity of American political life. Under either formulation of the constitutional issues here, the Washington statute and Washington election system meets the test and protects the constitutional rights of its voters. The decision below should be reversed.
William H. Rehnquist: Thank you, Mr. Johnson. Mr. Smith, we will hear from you now.
Daniel Hoyt Smith: Mr. Chief Justice, and may it please the Court, when we analyzed state restrictions on political expression and association relating to minor parties with dissident views, we are operating in the core of the First Amendment. Since there is no litmus test for ballot access restrictions, the numbers game is not useful. The cases do not say 1 percent is constitutional or an early deadline is unconstitutional, so to decide this case it is necessary to look at three questions. First, did the 1977 additional restrictions have a substantial impact on expression and association of minor parties and voters? Two, is there a governmental interest in these additional restrictions so compelling that it outweighs the burden on fundamental First Amendment rights? And three, are the new restrictions precisely drawn so that First Amendment rights are not necessarily... unnecessarily burdened, or could the legitimate state interest be achieved by less drastic means? I would like to address these in order, but first I must touch on the most crucial aspect of Washington's ballot access amendments of 1977. This was the conversion of the traditional one-step barrier as it applies in every other state in which qualifying candidates participate in the general election whether they are a minor party or major party nominees to a two-step exclusionary process. Now, as to the first step, as Mr. Johnson has discussed, Washington's nomination process, by convention, is different from a door-to-door petition signature requirement, so it is not automatic qualification. Far from it. The mounting of convention does require substantial effort, and in 1977 the legislature doubled the number of participants required with the result that the nominees that have been able to... the minor parties that have been able to qualify as shown by the table on Page 5 and 6 of our brief has been extremely limited--
William H. Rehnquist: You are referring now, Mr. Smith, to the statutory requirements for the convention?
Daniel Hoyt Smith: --Correct.
William H. Rehnquist: What are those?
Daniel Hoyt Smith: The convention requires that on the Saturday before the major parties even have to declare their candidacy, the minor party has to gather supporters on one day in one places nominate its candidates, and have a nominating petition signed by a number, which is now on a sliding scaler according to population, approximately 200 at this time, registered voters who give their names and voting addresses attesting to the nomination of that candidate.
William H. Rehnquist: That means that 200 registered voters would have to attend the convention?
Daniel Hoyt Smith: That's correct. And that restriction had been somewhat, I guess, degenerating by the increase of population, and the legislature remedied that problem. Previously it had been 25. It had been raised to 100. In 1977 the legislature about doubled it, and now it is tied to population. Since that change, the number of nominees has been one, two, or in one case three, and so we are talking about a very small and identifiable group of dissident parties who like the Socialist Workers Party and the Libertarian Party who filed the amicus brief here, who consistently over the years have put forth substantial effort into the electoral system to introduce their new ideas to the voters and have continued to be able to qualify candidates in very small numbers by convention.
Antonin Scalia: You are saying what it now takes is 200 people in a convention.
Daniel Hoyt Smith: In a convention.
Antonin Scalia: That is for a party.
Daniel Hoyt Smith: That's correct.
Antonin Scalia: What if you want to run without party support?
Daniel Hoyt Smith: As an independent it is the same requirement for a similar convention. You have to organize a convention to support your independent candidacy and get the signatures of the same number of voters.
William H. Rehnquist: Well, now, if this were the only requirement to get on the general election ballot you wouldn't be challenging it, would you?
Daniel Hoyt Smith: That's correct, and we believe that the record shows that historically a reasonable but small number of serious minor parties have been able to qualify, and since this has been adopted have still been able to nominate candidates. Our objection is that these nominees who have qualified are then universally eliminated by the primary requirement, and as Mr. Johnson... or as Mr. Justice Stevens brought out, it is a different situation for the minor parties than for the major parties, and it depends not primarily on the level of support, which is admittedly small because by definition these minor parties are small parties, and their contribution to our electoral politics does not depend on mass support, but the single example of any minor party candidate that has been able to meet the requirement since 1977 has been one race where there was only a single Democrat and a single Republican on the primary ballot, and so there was no contest, and it resembled a party versus party choice, and in that situation the Libertarian Party candidate for treasurer, a relatively low profile race, but was able to get the 1 percent. With that exception, when there was no contest, every time there has been a contest for the Republican or Democratic nomination, no minor party candidate has ever been able to qualify for statewide office. It has been a blanket exclusion, as the Ninth Circuit correctly found the record indicates. So that is the first question that the Court needs to address: Has there been a substantial impact on the participation of minor parties and the Interest that that affects of both the minor parties and the voters in injecting their ideas into the electoral system.
Antonin Scalia: Mr. Smith, is that relevant? I mean, all that it would prove... it would prove either, either that the new law is excessively restrictive or that the old law was excessively latitudinarian. It could prove either one. It depends entirely on whether there were too many parties before, whether the parties beforehand did not have a significant amount of popular support, significant enough under our laws to justify putting them on the ballot. Now, how do we know that the preexisting situation was a good situation? I tend to think that the OWL Party is not something that we needed on the ballot in Washington.
Daniel Hoyt Smith: Well, with regard to the first question you ask, Justice Scalla, whether it is too latitudinarian, this Court has said that one of the first things we can look at is whether in practice as applied minor parties are able to qualify, and the Court has said it is one thing if minor parties are regularly able to qualify for the ballot, and it is quite another thing if only rarely can any minor party get on. And this case definitely presents the situation of that other thing where minor parties are systematically barred. With regard to the OWL Party, the record indicates that the legislature was reacting to a situation where they were offended by the insufficient reverence that the OWL Party paid to the major parties, and particularly and ironically to the level of public support that the OWL Party was able to get, and--
Thurgood Marshall: Mr. Smith, would you accept any number? Suppose the state said you have to have at least 100 votes.
Daniel Hoyt Smith: --Yes, we believe that the fact that serious minor parties have been regularly able to meet the nominating convention requirement would be adequate support for that requirement to withstand any attack by somebody else who was not able to meet it to say the fact that these small but serious minor parties are able to meet this requirement indicates it is fair.
Thurgood Marshall: So if somebody has a convention of 200 relatives they can get on the ballot?
Daniel Hoyt Smith: The historical record indicates that that is not a problem, that has never happened in the State of Washington, and that there is no support on the record for the fear that that might happen, especially not if the remedy for such a hypothetical fear should be such areal and drastic and devastating impact on the few minor parties who need this route to the ballot.
Thurgood Marshall: Well, do you think a person could during 20 years of his life run every two years and get less than ten votes?
Daniel Hoyt Smith: Pardon me?
Thurgood Marshall: You don't understand the question? John Dokes runs for Congressman ten elections in a row and never got more than ten votes. The state has to consider him as a serious candidate.
Daniel Hoyt Smith: Well, I believe if the state wants to let people on without mounting the substantial effort that the convention requires, that the state may make that choice to open its ballot to those kinds of candidates, but--
Thurgood Marshall: Is it obliged to?
Daniel Hoyt Smith: --We are not suggesting that it is obliged to. We are suggesting that when it has got this first stage requirement which already limits the ballot to a small number of serious parties, to add the second stage, which totally wipes them off the ballot, is not... first of all, has a drastic impact, and second, is not necessary.
William H. Rehnquist: Well, Mr. Smith, in your definition of serious minor party when you were replying to Justice Marshall's question, I gather there is a numerical component to seriousness. The party which can muster only ten votes at its convention, it may have ten of the best debaters and the best philosophers in the State of Washington but the state can say that just isn't enough. Is that correct?
Daniel Hoyt Smith: Well, the hypothetical question is not posed in this case because we have a real situation in which there is a real and substantial requirement to qualify. If we didn't have this historical experience and we had to hypothesize in the dark, the state could test out a requirement and see if serious parties could qualify.
William H. Rehnquist: But it seems to me part of your argument is that our cases have said that there must be a way for serious minor parties to get on the ballot.
Daniel Hoyt Smith: That's correct.
William H. Rehnquist: And I am curious to know whether the way you use that term the term "serious" can at least be construed by the state to have a numerical component. That is, serious minor parties who can muster one-half percent of the turnout at the last election for that office at some stage in the campaign, just take hypothetically.
Daniel Hoyt Smith: Well, it depends on what the requirement is, because the numerical requirements for petition signatures, which are the only requirements that have been upheld by this Court, do represent some level of organizational ability and diligence that the party itself can control and go out and get signatures on the petitions, in Jenness, for example. We are not saying we will vote for this candidate, but we think that this candidate should be allowed on the ballot, and because of the traditional American openness to hearing different points of view, it is very easy to get people to go out and say, yes, we believe you should be allowed to be heard, and in American Party versus Texas, the Socialist Workers Party went out and got 22,000 plus signatures on their petition to get on the ballot without a serious problem but by their diligence and by their effort. And the vote, on the other hand, as the record indicates, reflects the primary contest by the major parties and not the diligence or the efforts put out by the minor party within their limited capabilities, but that is more related to the contribution a party can make to the debate that they are capable of organizing and organizational effort like that to gather petition signatures than to make it rely on having some certain level of support in the primary election for a number of reasons. Number One is that the primary is not an adequate forum as a substitute for the general election. First of all, the timing is prior to the identification of the candidates by the nominating process of the major parties. Second, as in this race, there are numerous, often dozens of major party candidates that still have to be selected by the party for who is going to represent them, and so that if there is any confusion, which Mr. Johnson identified as the interest the state is concerned about, it takes place at the primary, as in this case with 32 Democrats and Republicans on the ballot along with a single Socialist Workers Party candidate. The voting machine has no instruction on that of what even the purpose of the minor party candidate is on the ballot, and if the minor parties are going to make a contribution to the election process, it is not because they are likely to win, but because in the debate between the representatives of the parties they have some new ideas and they have a differing point of view. That is really not relevant.
Antonin Scalia: Excuse me. Your brief has a good deal of that in it. If that is really the criterion, then your answer to the Chief Justice earlier should have been different. Then there really would be no reason to exclude anybody from the ballot. If Socrates is running alone, without any support whatever, he should be on the ballot.
Daniel Hoyt Smith: I think that is probably correct if the state's interest that it is asserting against Socrates is that the voters would be confused and the ballot would be crowded, and the Democrats and Republicans say you cannot be the third candidate on our ballot because that would confuse the voters and crowd the ballot, I think Socrates should win in that case.
Antonin Scalia: Even if he has no support whatever. It is just, he is a wise man, he can contribute to the discussion.
Daniel Hoyt Smith: That's correct.
Antonin Scalia: What about the many expressions in our cases that in fact the state can require that the people it puts on its ballots have substantial support? Not that they be wise. Not that they have good ideas to contribute. But they have substantial support.
Daniel Hoyt Smith: That is because of the experience that with no requirement whatsoever substantial... some modicum of support is a fair requirement to avoid the problems of ballot crowding and voter confusion, and in this case we have such a legitimate interest being taken care of by one mechanism. The question is whether... how far beyond that, to get the OWL Party, whether you can employ your shotgun that wipes out every other party totally off the ballot.
Antonin Scalia: That can't be the explanation of our cases because a much more... much less restrictive means of preventing confusion is to have a sliding scale of the degree of support you need. That is, there will be 15 slots on the ballot. We will let every party get on the ballot up to 15. Past 15 it is confusing, but up to 15 it is not confusing. So I don't care if you get 30 votes. We will still put you on so long as there is a 15th slot available. Now, we have never required anything like that, so there must be something underlying this beyond merely confusing the voters. We do require substantial support.
Daniel Hoyt Smith: Substantial support is not required as an end in itself, Number One, but Number Two, if it is of a reasonably low level that it allows, consistently allows serious minor party candidates to qualify, then the cases say you haven't met the threshold of showing... the first step is showing a substantial impact on diversity.
Antonin Scalia: But I note you have slipped in the word "serious", "serious minor party". What do you mean by serious? When you say serious, I immediately think substantial popular support. Now, what do you mean by serious? They are Socratic? They are wise people? Or they have substantial support?
Daniel Hoyt Smith: The record in the State of Washington is that there are a small number of minor parties that have regularly qualified candidates for the ballot, like the Socialist Workers Party, like the Libertarian Party, and what the legislative history indicates is that the frivolous parties that were allegedly targeted were ones with no serious program and no solutions to offer the people, and the record indicates that they were specifically irritated by the OWL Party, and unfortunately used an ax when they should have used a scalpel.
William H. Rehnquist: Mr. Smith, let me get back again to something I think I asked you previously. Do I get from your answers to my questions and some other questions that a numerical requirement to get on the ballot, a numerical requirement of support would fail of constitutional muster, would fall to pass constitutional muster if parties such as the Socialist Workers Party, as it has been in Washington, couldn't meet that requirement, no matter what the requirement was? If it doesn't let a party like the Socialist Workers Party In Washington on, it is unconstitutional?
Daniel Hoyt Smith: I would say if it doesn't let any party... if, like this case, it lets no party outside the Democratic and Republican Party qualify for the ballot, it is clearly unconstitutional if--
William H. Rehnquist: What if it let the Socialist Workers Party on but not the Libertarians? They couldn't quite make the numbers.
Daniel Hoyt Smith: --Well, then it would be a harder case than this one is. Whatever the--
William H. Rehnquist: How would it come out?
Daniel Hoyt Smith: --Well, whatever the number is, it cannot be zero as a reasonable number.
William H. Rehnquist: How would that case come, out? Might it be constitutional, a system which allowed the Socialist Workers Party but not the Libertarian Party through the use of numbers?
Daniel Hoyt Smith: I'd say if another small party could meet a, for example, a petition signature requirement which could be met through reasonable diligence, then it would be constitutional to say your failure to exercise that diligence to gather the relatively reasonable number of signatures that other small parties are able to gathers then you are responsible for your own fate. That is not the case we have here today.
John Paul Stevens: May I ask you another question? You have placed quite a bit of emphasis on the fact there are two stages that have to be met by your party, one, a convention, which is rather modest, and then the I percent primary requirement. Supposing the state said, as they do with Democrats and Republicans, anyone may get on the primary ballot, just eliminate the first stage, and then your candidate could run simply on that and have to meet a I percent. Would that be permissible, do you think?
Daniel Hoyt Smith: We suggest that it would not for the reasons that I mentioned earlier why the primary election is not an adequate forum for minor parties.
John Paul Stevens: So your position really is that no requirement that depends on an Independent candidacy getting a certain number of votes in the primary would be permissible because the function of a primary is really to sort out the major party candidates?
Daniel Hoyt Smith: Well, if it was a requirement that was not so high that it--
John Paul Stevens: Well, take Justice Marshall's example. Say it said 100 votes. You have to get 100 votes in the primary. Or the 200 that you have now for your convention. Would that be permissible?
Daniel Hoyt Smith: --Well, for example, If--
John Paul Stevens: I have given you the example.
Daniel Hoyt Smith: --Okay.
John Paul Stevens: Would that be permissible?
Daniel Hoyt Smith: If it had no substantial exclusionary effect on all minor parties, that would be permissible.
John Paul Stevens: Well, it would exclude all those that couldn't get 200 votes.
Daniel Hoyt Smith: Well, as a practical matter I think that this is a hypothetical question which does not require answering to decide this case, and it is unlikely to--
John Paul Stevens: It does for me, because I am wondering whether you are assuming there is some minimum threshold that could be imposed in a primary. It may be different in petitions. I understand your argument about that. Or are you saying that the primary is not the appropriate vehicle to test the minimum threshold support, and can never be used? I am just not sure what your position is.
Daniel Hoyt Smith: --I suggest that the primary should never be--
John Paul Stevens: Well, should never. I know it is not the best. It is constitutionally Impermissible to use a primary which is primarily designed for another purpose to satisfy this threshold test.
Daniel Hoyt Smith: --I'd say it is analogous to the cases of the Court on filing fees, that there is a less restrictive alternative of the petition signatures, and therefore if it has a--
John Paul Stevens: Well, there is always going to be a less restrictive alternative. If you put it at 200, it could have been 100.
Daniel Hoyt Smith: --Well, if the state aims that are being accomplished are preserving the integrity of the ballot, then you cannot use a system that heavily burdens the First Amendment. If a reasonable number of serious minor parties are able to meet the requirement, then you are not causing the harm of wiping the slate clean of all but the two major parties and creating a monopoly.
John Paul Stevens: If I understand you correctly, the constitutional outcome depends on the empirical results. In other words, the non-statewide candidates who could get the 1 percent, it is perfectly constitutional as to them, but it is unconstitutional as to those who can't pass the threshold.
Daniel Hoyt Smith: That's correct, you have to show the--
John Paul Stevens: So you could have... this same provision might have... it didn't work in Michigan, I know, but in another state the 1 percent might be okay if three or four parties could meet the requirement.
Daniel Hoyt Smith: --That's correct. You have to show the harm as applied, and this Court has always sale you have to look at the impact, you can't look at the abstract. You have to look at the impact, which depends on the historical record, and so has universally rejected--
John Paul Stevens: Kind of local community standards for elections.
Daniel Hoyt Smith: --Well, this Court has rejected facial challenges and said, you have to look at the impact on the actual community, and that if a monopoly is the result, that is impermissible.
Harry A. Blackmun: Mr. Smith, what is the Washington system as to write-in votes? Suppose your candidate doesn't make it to the general ballot. I get some confusion in the briefs as to whether write-in votes are permissible.
Daniel Hoyt Smith: The Court of Appeals decision interpreted the Washington statute, which says that an unsuccessful minor party... or an unsuccessful primary participant cannot be a write-in candidate to say that the write-in was not available and the Court of Appeals also followed the decisions of this case saying that a write-in vote is not a constitutionally accepted alternative to general election ballot placement. The state has argued that this only applies to major parties, even though there is no specific limitation in the statutory language, and also the record indicates that the election results reported by the Secretary of State show no write-in votes for any of the offices that they have ever reported the election results in on the record, and so the inference that can be drawn from that is either that nobody ever exercises a write-in vote or the Secretary of State doesn't keep track of them, but in either case they are not a sufficient substitute for the participation in the campaign, the debate, and the presentation of their ideas, in the same way this voters' pamphlet that was brought up by Mr. Johnson for the first time, there is no showing of any financial burden on the record here that to add an extra paragraph to a 30-page pamphlet would put some burden on the state or would unfairly or unreasonably subsidize the minor parties by broadening the choices available to the voters. We suggest that that is exactly the kind of contribution that minor parties should be playing in this election campaign.
Byron R. White: Tell me again, you probably stated it before, but tell me why the Socialist Workers Party isn't able to get the requisite votes at the primary.
Daniel Hoyt Smith: Well, historically the record as pointed out by Mr. Johnson indicates that choosing the 1 percent level, the state has chosen a level that is higher than 90 percent of the minor parties have ever been able to get, even in the general election, so they have chosen a level that is up at the 90th percentile instead of choosing a level from the record that was down at the 50th or--
Byron R. White: That is... what you say may be correct, but what I asked you is, why haven't the Socialist Party or the other minor parties been able to get the requisite votes at the primary?
Daniel Hoyt Smith: --Well, first of all, only one-third of the voters even are interested in enough in the primary to participate, and those are typically partisans of one of the major party candidates who care about what the primary is about, namely, which major party candidate will get the nomination.
Antonin Scalia: Well, that's fine, 1 percent of a smaller number is a smaller number. I mean, that doesn't prove anything.
Daniel Hoyt Smith: This is not a randomly selected smaller number. It is a number selected from partisans of the major parties.
Byron R. White: But it is... the one-third are the ones that the major parties make an effort to get out.
Daniel Hoyt Smith: That's correct.
William H. Rehnquist: But the Socialist Workers Party surely make an effort to get their partisans out, don't they?
Daniel Hoyt Smith: That's correct, and we are saying that this is not only unfair in its mode but also that it should not be required that voters make a commitment at that primary stage to the Socialist Workers Party candidate to allow a small number of candidates to participate in the general election, and that--
Byron R. White: Why shouldn't you be... why isn't it fair to say if you... why don't you just get out your supporters and hope that they will add up to 1 percent?
Daniel Hoyt Smith: --Well, the Socialist Workers Party has made that effort, and $1,900 may not be very much, as Mr. Johnson says, but it is a lot of leaflets, and it is certainly not a prime time television ad that goes statewide the way the major parties can put on.
Byron R. White: And what is wrong with saying if you can't get your people out you don't get on the ballot?
Daniel Hoyt Smith: Well, because the first amendment and the recognized role of minor parties in the election process does not depend on a large measure of support, and the abolitionists, the prohibitionists--
Byron R. White: I know, but the question is whether the First Amendment requires... forbids a state to require a showing of 1 percent.
Daniel Hoyt Smith: --And we suggest that if the interest they assert of confusing the voters and having ballot crowding is the justification for a monopoly by the minor parties, then the Court of Appeals was correct in returning Washington to the system that had worked so well for 70 years and saying that monopoly is not justified on the record here by any demonstrated history of ballot crowding and voter confusion, which is the burden of the state to establish.
Byron R. White: I suppose you would also say if Washington said the only minor parties who can get on the next general election is one that got 1 percent of the vote at the last general election, that would be unconstitutional, too.
Daniel Hoyt Smith: That would perpetuate the monopoly, especially when there is the reasonable alternative in the convention and petitions.
Byron R. White: Even though there's a lot of people out at the general election.
Daniel Hoyt Smith: Well, because they have been excluded from the general election, there is no way they can get the 1 percent at the general election and it is a closed door for the minor parties.
William H. Rehnquist: Thank you, Mr. Smith. Mr. Johnson, did you have something more to say? You have four minutes remaining.
James M. Johnson: Just a moment, please, to correct an answer I gave Justice Stevens, that consideration of the number of candidates printed in the voters' pamphlet was discussed in the Washington legislature, Justice Stevens, and is reprinted at Page A2 of our reply brief, the note that this effect retroactively analyzed would have been to cut down the number of candidates from 65 to 50 in that printing. The argument here appears to want to escalate the Washington convent ion requirement to another "barrier"--
John Paul Stevens: May I just ask, 65 to 50, are these all statewide candidates?
James M. Johnson: --No, they are not, as I responded to the first question.
John Paul Stevens: So there is a different pamphlet for each election district?
James M. Johnson: There is a different pamphlet by each Congressional District.
John Paul Stevens: By each Congressional District.
James M. Johnson: Yes, Justice Stevens.
John Paul Stevens: I see.
James M. Johnson: In fact, the convention requirement in Washington is the equivalent of a petition. First, the convention requirement was not challenged below at all, as you can see from the complaint. Secondly, the District Court found that this party's convention was a "street corner convention". The attachments to C13, an affidavit of the party, show the candidates standing on a street corner in Seattle conducting their convention, and the point is, that is all right with Washington. We do not have any separate barrier through convention at the de minimis 200 voter requirement. Finally, I think we should consider the alternatives that are clearly and constitutionally available to Washington. The Jenness versus 5 percent requirement would work an obligation to get 122,000 signatures to qualify for the Washington ballot as contrasted with the 9,000 for a Governor' race in Washington and a sliding scale actually which we impose. The 1 percent is applied to each office, working your way down the ballot, and is much less, of course, for local offices, and this is why Washington legislative positions and local offices, the minor parties have always been successful in qualifying for the general election. One percent is not a large requirement to dictate substantial support. Any other kind of method, Mr. Smith suggests we use a scalpel, but any content control requirement to discern frivolous parties would, I submit, be unconstitutional, so a numerical requirement is required constitutionally, The 1 percent imposed by the Washington statute is reasonable and easily reached by a diligent party. Therefore we conclude the Washington statute is constitutional and ought to be upheld.
William H. Rehnquist: Thank you, Mr. Johnson. The case is submitted. We will resume there at 1:00 o'clock.