Moore v. Ogilvie/Dissent Stewart

by Potter Stewart

United States Supreme Court

394 U.S. 814

Moore  v.  Ogilvie

 Argued: March 27, 1969. --- Decided: May 5, 1969

Mr. Justice STEWART, with whom Mr. Justice HARLAN joins, dissenting.

I cannot join in the Court's casual extension of the 'one voter, one vote' slogan to a case that involves neither voters, votes, nor even an ongoing dispute.

First of all, the case is moot. The appellants brought this action merely as prospective 'candidates for the offices of Electors of President and Vice-President of the United States from the State of Illinois to be voted on at the general election tob e held on November 5, 1968.' But the 1968 election is now history, and no relief relating to its outcome is sought. In the absence of any assertion that the appellants intent to participate as candidates in any future Illinois election, the Court's reference to cases involving 'continuing controversies' between the parties is wide of the mark. Cf. Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113. There simply remains no judicially cognizable dispute in this case. Since, however, the Court reaches a contrary conclusion, I shall indicate briefly the reasons for my disagreement with its holding on the merits.

The legislative apportionment cases, upon which the Court places its entire reliance, were decided on the theory that voters residing in 'underrepresented' electoral districts were denied equal protection.

'Overweighting and overvaluation of the votes of those living here has the certain effect of dilution and undervaluation of the votes of those living there.' Reynolds v. Sims, 377 U.S. 533, 563, 84 S.Ct. 1362, 1382, 12 L.Ed.2d 506.

In this case, by contrast, the appellants have sued merely as prospective candidates for office. They claim no impairment whatever of any interests they might have as voters; indeed, their complaint contains no allegation that any of them is in fact a qualified Illinois voter. Undeterred by the appellants' failure to explain how or as against whom they themselves are denied equal protection, however, the Court reaches out to hold that this statute 'discriminates against the residents of the populous counties of the State in favor of rural sections.' But since no 'residents of the populous counties of the State' have asserted any rights, the Court's decision represents at best an advisory vindication of interests not involved in this case.

Even if the interests of voters in Illinois' 'populous counties' were actually represented here, the Court's conclusion would still be completely unjustified. Reynolds v. Sims, supra, and its offspring at least involved situations in which the 'debasement' or 'dilution' of voting power found by the Court was the 'certain' result of population variations among electoral districts. Under the Illinois statute now before us, however, no injury whatever is suffered by voters in heavily populated areas so long as their favored candidates are able to secure places on the ballot. And there is absolutely no indication in the record that the appellants could not, if they had made the effort, have easily satisfied Illinois' 50-county, 200-signature requirement. Indeed, there is no suggestion that the counties from which the appellants drew their support were 'populous' rather than 'rural.' The rationale of Reynolds v. Sims simply does not control this case.

Any reliance by the Court on Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24, would also be misplaced. That case involved an Ohio requirement that new political parties secure the support of over 433,000 persons-15% of the electorate-before their candidates could appear on the ballot. Here, the 25,000 signatures required by Illinois represent only about one-half of one percent of the total number of Illinois voters-a percentage requirement permissible, one would hope, under any view of the Rhodes case. Nor do the appellants make any showing that securing 200 signatures in less than half of the State's counties would be a burden at all comparable to that involved in Williams v. Rhodes.

The Court held in MacDougall v. Green, 335 U.S. 281, 69 S.Ct. 1, 93 L.Ed. 3 in sustaining the very statutory requirement here at issue, ^[1] that Illinois had pursued an 'allowable State policy (of) requir(ing) that candidates for statewide office should have support not limited to a concentrated locality.' Id., at 283, 69 S.Ct. at 2. That conclusion seems to me to be no less sound today than it was at the time of the MacDougall decision. ^[2] Illinois' policy is, in fact, not at all unlike that p held by the Court only two Terms ago in Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656, in which a district-residence requirement imposed upon municipal officers despite population variations among districts was nevertheless held proper as reasonably 'reflect(ing) a detente between urban and rural communities * * *.' Id., at 117, 87 S.Ct. at 1556. Cf. Lucas v. Forty-Fourth General Assembly, 377 U.S. 713, 744, 84 S.Ct. 1459, 1477, 12 L.Ed.2d 632 (Stewart, J., dissenting); Reynolds v. Sims, supra, at 589, 84 S.Ct. at 1395 (Harlan, J., dissenting).

I respectfully dissent.

Notes

1. MacDougall involved Ill.Rev.Stat., c. 46, § 10-2, relating to ballot position for candidates of new political parties; Ill.Rev.Stat., c. 46, § 10-3, involved here, imposes identical signature requirements for independent candidates.
2. While MacDougall involved candidates for various offices, the appellants here all sought election as presidential electors. See U.S.Const., Art. II, § 1:

'Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress * * *.' (Emphasis added.)