Legal Brief: Wells v. Democrats/Republicans
What follows is an informal brief on the Cause of Action, Prior Adjudication and Evidenciary Material related to this case. I'm not
an attorney and I've never written a legal brief before. Nonetheless, I believe that all the information needed to assess the viability
of this case can be found here. Links to related material can be found in the column to the right.
A large group of centrist voters - disenfranchised by the two-party system.
The legal justification for striking down partisan elections is actually very simple - Partisan elections are based on a "Separate-but-Equal"
doctrine. I summed this up in my November 2008 Voter's Pamphlet statement:
"By law, voters in Oregon are segregated by party affiliation. Republicans and Democrats are subsidized while restrictions are imposed
on anyone else who attempts to participate as a voter or a candidate. There's no legitimate reason for this segregation, but partisans
control the legislature, and they wrote the rules."
The single most important prior case is LPO v. Roberts, 305 Or 238 (1988). In 1984 and continuing into 1988, the LIbertarian Party
of Oregon (LPO) brought suit in state court and challenged the constitutionality of partisan elections in Oregon. The LPO cited every
single federal and state constitutional provision they could think of - and lost - on all claims.
This type of case is called "Ballot Access" litigation. All states require Independent candidates and political parties to prove a
level of "voter support" in order to have the name of a candidate placed on the ballot. This support can be proven either by garnering
votes in an election or gathering petition signatures. This is a very common type of litigation as there have been many of these cases
brought in state and federal court over the last 50 years. The plaintiffs - third parties and Independent candidates, almost
always lose. This is a very mature area of law.
A very comprehensive survey of this type of litigation can be found in the article "Judicial Protection of Ballot Access Rights: Third
Parties Need Not Apply" Bradley A. Smith, Harvard Journal of Legislation, Vol. 28:167, 1991. You can skim this article or something
more recent for reference, but it isn't necessary. I don't intend to pursue a ballot access case. All the "issues of law"
have already been settled (repeatedly). I intend only to retry the "issues of fact" decided in LPO v. Roberts. To that end, it
would be a good idea to read the final judgement in this one case. A link can be found in the right hand column.
1. The first section of the decision summarizes the statutory scheme for nominating candidates to "partisan office" in Oregon. All the "factual issues" considered by the court can be found here. This summary is 25 years old but is nonetheless suprisingly accurate: In Oregon, Partisan candidates are seperated by party affiliation; Major Party, Minor Party, Assembly of Electors(Unrecognized Minor Party) and Individual Electors(Independent). Note that there is no discussion of financial subsidies or costs.
The Secretary of State has prepared a newer summary of Oregon Elections laws and a "Candidate Manual". links can be found to the right.(Note that in the intervening years since 1988, the legislature has redefined the word "Independent" to mean a candidate not affiliated with a political party or a partisan candidate nominated by an assembly of electors.)
2. The second section of the opinion deals with each cause of action related to the Oregon Constitution. There is a long list, but only two provisions are important;
3. The third section of the opinion deals with each cause of action related to the U.S. Constitution. I don't intend to pursue any cause of action based on the U.S. Constitution, so this section isn't very relevent. There are two federal cases that are worthy of note however; Williams v. Rhodes, 393 US 23, 1968 and Jenness v. Fortson, 403 US 431. Both of these cases should be reviewed. Links are provided in the right hand column.
"In this respect, Article II section 1, can be viewed as a special application of Article I, section 20, which prohibits disparate treatment of "any citizen or class of citizens" based upon impermissible or nonexistent criteria."
"Article II, Section 1, also prohibits the government from attempting to influence the outcome of elections through intervention on behalf of favored candidates or against disfavored candidates."
"Our function, however, is not to decide whether the Legislative Assembly could have tailored ORS 248.008 and 249.732 to serve more exactly its legitimate objectives, whatever those legitimate objectives may have been. Our function is to ascertain whether a purpose of these statutes is to protect the major plitical parties from rival political organizations."
"Without a more substantial showing by the LPO that the purpose of ORS 248.008 and 249.732 is to discourage the development of political rivals to the major parties, we cannot conclude that these statutes violate Article I, section 20, or Article II, section 1, of the Oregon Constitution."
In Williams v. Rhodes, the U.S. Supreme Court ruled that state election schemes must provide equal qualifying
standards for all candidates regardless of party affiliation - unless - the state has a "compelling interest" to do otherwise. In
Jenness v. Fortson, the U.S. Supreme court upheld this interpretation, but nonetheless refused to strike down a Georgia election scheme
with unequal standards. The court made a "finding of fact" that a compelling interest existed. (The prevention of "voter confusion",
ballot overcrowding and the presence of frivolous candidacies)
In LPO v. Roberts, the Oregon Supreme Court simply followed the standard set by Jenness v. Fortson and made a finding of fact - there was insufficient evidence to prove that no compelling interest existed. Note that the burden of proof lies solely with the plaintiff. It appears that the LPO "argued" strenuously that the state could have chosen a less drastic means to satisfy its' compelling interests. It does not appear however, that the LPO submitted any "evidence" to prove the point. The court simply dismissed all the arguments. If you "argue" without "evidence", you are asking the court to "Legislate from the Bench". The courts cannot and will not do so.
In 1978, a case came up in Illinois similar to LPO v. Roberts. A minor party filed suit in federal court claiming that the qualifying standards for minor party candidates were so high they violated the U.S. Constitution. The state made the usual defensive claims about compelling state interests, but the U.S. Supreme Court nonetheless ruled in favor of the minor party. A link to the decision can be found in the column to the right.
"However, our previous opinions have also emphasized that even when pursuing a legitimate interest, a State may not choose means that unnecessarily restrict constitutionally protected liberty,..., and we have required that States adopt the least drastic means to achieve their ends."
"The signature requirements for independent candidates and new political parties seeking offices in Chicago are plainly not the least restrictive means of protecting the State's objectives. The Illinois Legislature has determined that its interest in avoiding overloaded ballots in statewide elections is served by the 25,000-signature requirement. Yet appellant has advanced no reason, much less a compelling one, why the State needs a more stringent requirement for Chicago"
In this case, the state required a minor party candidate to collect over 60,000 signatures to qualify as a candidate in the city of Chicago, but the same candidate had only collect 25,000 signatures to qualify as a statewide candidate. The legislature effectively "disproved" its' own claim of a compelling interest by adopting not one, but two separate qualifying standards. The second standard being less drastic than the first. Specificallly, the plaintiffs didn't just "argue" that a less drastic means existed, they presented "evidence" of the fact.
In Oregon, the legislature has adopted not one, but two completely independent schemes for nominating candidates to the general election ballot. Each elective public office is designated as "Partisan" or "Nonpartisan". Unlike partisan offices - for each nonpartisan office, a single "nominating" election is held to determine the top two candidates who will advance to the general election. This election is open to all candidates and voters, regardless of party affiliation.
249.088 Determining number of nominees; nomination or election of candidate at nominating election. (1) Unless otherwise provided by a home rule charter, at the nominating election held on the date of the primary election, two candidates shall be nominated for the nonpartisan office. However, when a candidate, other than a candidate for the office of sheriff, a candidate for the office of county clerk, a candidate for the office of county treasurer or a candidate to fill a vacancy, receives a majority of the votes cast for the office at the nominating election, that candidate is elected. (2) When a candidate for the office of sheriff, the office of county clerk, the office of county treasurer or a candidate to fill a vacancy receives a majority of votes cast for the office at the nominating election, that candidate alone is nominated.
This type of election is called a "Top-Two" primary. Washington State and California have both adopted a Top-Two primary for all offices except President of the United States. In Arizona, a group has qualified a similar measure for the November 2012 General Election Ballot. In Oregon, the election for Portland Mayor is conducted as a Top-Two primary.
Unlike partisan elections, all candidates and voters are treated equally in a Top-Two primary. In adopting a 'Top-Two" primary for nonpartisan offices, the legislature has effectively disproven the claims of compelling state interests with respect to partisan elections. The seperation of voters and candidates in partisan elections serves no legitimate state interest.
The point here is the admissability of evidence and sufficiency:
- When a state makes a defensive claim of "compelling interests" - evidence of a "Less Drastic Means" is admissable.
The core issue in this case is the distinction of issues. As I understand it, there are three types of issues: "Issues of Fact", "Issues
of Law" and "Political Issues".
1. Issues of law must be tried by the court. You can "argue" an issue of law before the
court, but arguments may not be presented to a jury. Issues of law involve the interpretation of constitutional provisions or statutes,
and resolution does not require any evidence other than the applicable law.
2. Issues of fact must be tried by a Jury,
or with the permission of the plaintiff - by the court. Issues of fact must be "proven" by "admissable" "evidence".
Political issues may not be addressed by either the court or a jury. This is the exclusive domain of the Legislature. The LPO
petitioned the court to rule that a 5% showing of support for ballot access was too high. They were asking the court to review a political
issue. If 5% is too high, what would be a reasonable level, 3%, 2%...? The constitution doesn't say. The Court was correct in denying
this petition. The constitution does say however - that whatever the level is - it must be equal. (Issue of law.)
Rather than pursue broad based ballot access litigation, I intend only to retry the issues of fact from LPO v. Roberts - with new
evidence and a cause of action based on an Independent voter instead of third party candidates. The Oregon Supreme Court, in LPO v.
Roberts, made a ruling that plaintiffs must prove not one, but two, factual allegations in order to prevail:
1. The statutory
scheme adopted by the Oregon legislature mandates;
a. seperate standards for candidates based on party
b. these standards are not equal.
2. The state has no compelling interest to justify
the disparate standards.
Note: This brief is intended primarily for interested attorneys. Nonetheless, I anticipate that there will be many readers who are
not lawyers. (Potential Co-plaintiffs, reporters and other interested parties etc...) As such, I have deliberately presented
the material in laymens' terms - trying to strike a balance between conveying all the legal particulars while still making the
material accessible to non-lawyers.
Since the cause of action is based on an Independent voter instead of minor party candidates, I believe some type of third factual
allegation is needed to establish "standing" for an Independent voter. This third factual allegation must answer the question
of motive. Why did Democrats and Republicans go to all this trouble; what do they have to gain; and how does this adversely effect
an Independent voter? The answer involves both "gerrymandering" and candidate "viability":
1. The nonpartisan election scheme adopted by the Oregon legislature allows full participation by Independent voters in all three
stages of an election;
a. eliminating "non-viable" candidates and;
b. winnowing the field to no
more than two "viable" candidates and;
c. if necessary, selecting between the top two "viable" candidates.
is true even if the electoral district demographics are such that only one of the two major party candidates is realistically
"viable". (Gerrymandering) Note that a "viable" candidate is implicitly defined by statute as a candidate who has demonstrated
the potential to garner more than 50% of the vote in the general election.(ORS 249.088 supra)
2. The partisan election scheme adopted by the Oregon legislature, in combination with political gerrymandering of election districts,
subsidies to major party candidates and restrictions on non-major party candidates, is designed to systematically deny participation
to Independent voters until one of two conditions exists:
a. There are only two "viable" candidates - one
Democrat and one Republican.
b. There is only one "viable" candidate - either a Republican or Democrat.
In LPO v. Roberts, the plaintiffs relied almost exclusively on the disparity in "voter support" requirements to prove the seperate
standards were unequal. From an evidentiary standpoint, this is unnecessarily obtuse. I intend to focus primarily on the financial
1. Other than a small filing fee paid by each candidate, the entire cost of qualifying major party candidates
for the general election ballot is paid for with public money and resources. Independent and Third party candidates are not subsidized
2. Each major party candidate is allowed to buy advertising space in the official "Primary Election Voters' Pamphlet"
for a small fee. This small fee is in no way comparable to the fair market value of the advertisement which is on the order of $250,000.
Independent and third party candidates are not permitted to participate in this subsidized advertising.
3. Independent and Third
party candidates are not allowed to pay the filing fee and qualify as candidates until 15 days after the primary election. This is
roughly 8 months after major party candidates are allowed to qualify.
b. Article II, Section 1 - "All elections shall be free and equal."
a. Article I, Section 20 - "No law shall be passed granting to any citizen or class of citizens privileges or immunities, which upon the same terms, shall not equally belong to all citizens." and;
- The existance of a "Less Drastic Means" is sufficient to disprove any claim of compelling interests with respect to the more drastic means.