McCarthy v. Elections Board
McCarthy v. Elections Board
Opinion of the Court
The court is again asked to exercise its original jurisdiction to review the decision of the presidential preference selection committee and issue a writ of man
A petition for leave to commence an original action was filed by four persons who had sought placement on the 1992 Wisconsin presidential preference ballot — Eugene McCarthy, Larry Agran, Lyndon H. LaRouche, Jr. and David E. Duke — and five persons eligible and intending to vote in the presidential preference election. Thereafter, the court permitted Emmanuel L. Branch to join the proposed action as a petitioner.
The relevant facts are not disputed. As disclosed by the minutes of its January 28, 1992 meeting, the 1992 Presidential Preference Selection Committee elected Professor Gordon Baldwin its chairman, pursuant to sec. 8.12(l)(b), Stats.,
At its meeting, the Selection Committee had been provided written information from the Wisconsin Legislative Reference Bureau and the Elections Board concerning possible 1992 presidential candidates and persons who had expressed a desire to be on the 1992 Wisconsin presidential preference ballot. The names of David Duke and Harold E. Stassen appeared among the names of persons who had declared Republican candidacy and the name of Eugene McCarthy appeared on the list of persons having expressed a desire to be on the Wisconsin ballot. Each of the remaining petitioners, Larry Agran, Lyndon H. LaRouche, Jr. and Emmanuel Branch, had informed the Selection Committee, directly or indirectly, of his interest in being placed on the ballot.
The issue presented for determination is whether the Selection Committee properly exercised its statutory discretion in not certifying to the Elections Board the names of Eugene McCarthy, Larry Agran and Lyndon H. LaRouche, Jr. for placement on the 1992 presidential preference primary ballot of the Democratic Party and the names of David E. Duke, Emmanuel L. Branch and Harold E. Stassen for placement on the 1992 presidential preference primary ballot of the Republican Party.
Section 8.12(1)(b), Stats., directs the Selection Committee "to determine and certify to the [Elections Board] . . . the names of all candidates of the political parties represented on the committee for the office of president of the United States." It also directs the Selection Committee to "place the names of all candidates whose candidacy is generally advocated or recognized in the national news media throughout the United States on the ballot."
In reviewing the Selection Committee's actions here, we determine only whether the Selection Committee abused its discretion. Here, there is no evidence that the Selection Committee applied the news media advocacy or recognition standard to the candidacy of David Duke. No transcript of the Selection Committee meeting is in the record. The record contains the minutes of that meeting, which merely state, "Considerable discussion of Wisconsin law, and the United States Constitution followed the motion [to place Duke's name on the Republican ballot]."
In their briefs, the parties assert that much of the discussion concerned Mr. Duke's acceptability to the Republican Party as its candidate but nothing in the record indicates, much less establishes, that the Selection Committee's decision not to certify Mr. Duke's name for ballot placement was based on that consideration or on any other. Moreover, and more importantly, there is no evidence that it was based on the Selection Committee's having properly applied the statutory standard of media advocacy or recognition to Mr. Duke's candidacy. Thus, we conclude that the Selection Corn-
The Selection Committee gave no consideration at all to the other persons who had declared their candidacy as Republican or Democrat for U.S. President or expressed to the Selection Committee their desire to be placed on the preference ballot of either of those parties. The Selection Committee did not consider whether any of these candidates should be placed on the preference ballot either under the news media advocacy or recognition standard or as "other candidates." The Selection Committee's failure to exercise at all the discretion conferred upon it by statute constitutes an abuse of that discretion.
The law governing the selection of names for ballot placement in the presidential preference election is inclusionary, not exclusionary. While requiring ballot placement of the name of each candidate whose candidacy the Selection Committee determines meets the news media recognition advocacy or recognition test, the statute gives the Selection Committee broad discretion to certify other candidates for ballot placement. The proper exercise of the Selection Committee's discretion does not permit it to ignore the names of persons known to have declared their candidacy of the Republican, the Democratic or any other party for the office of U.S. President or who had expressed to the Selection Committee interest in being placed on the preference ballot.
Wisconsin conducts an "open" primary to give its voters "an opportunity to express their preference for the person to be the presidential candidate [of the politi
The purpose of the Wisconsin primary is clear.
For over seventy-five years this state has conducted primary elections in the belief that the primary wrests the control over the selection of candidates from party bosses, caucuses and conventions and puts the control where it belongs — with the people of the state and that the open presidential preference primary (compared to a closed primary) increases the opportunity of the citizens of this state to participate at a critical stage of the process of electing a President. State ex rel. LaFollette v. Democratic Party, 93 Wis. 2d 473, 482, 287 N.W.2d 519 (1980). See also, Id., 492-93.
In order to accomplish that purpose the legislature refrained from giving any participating political party the power to veto the placement on its ballot of a person claiming to be its candidate.
The tradition of the open primary in Wisconsin has continued to the present, albeit with a significant modification. Wisconsin law no longer binds delegates to the national convention of a political party by the results of the presidential preference election. In Democratic Party of United States v. Wisconsin ex rel. LaFollette, 450 U.S. 107, 67 L. Ed. 2nd 82, 101 S. Ct. 1010 (1981), the U.S. Supreme Court struck down Wisconsin's former requirement that the results of the presidential prefer
Because we conclude that the Presidential Preference Selection Committee abused its discretion under sec. 8.12(l)(b), Stats., with respect to the persons before us and because time does not permit remand to the Selection Committee for the proper exercise of discretion in respect to them, we direct that the names of Eugene McCarthy, Larry Agran and Lyndon H. LaRouche, Jr., be placed on the 1992 Democratic presidential preference ballot as candidates for the office of president of the United States and that the names of David E. Duke, Emmanuel L. Branch and Harold E. Stassen be placed on the 1992 Republican presidential preference ballot as candidates for the office of president of the United States.
APPENDIX
8.12 Presidential preference vote. (1) Selection of names for ballot, (a) No later than 5 p.m. on the first Tuesday in January, or the next day if Tuesday is a holiday, in each year in which electors for president and vice president are to be elected, the state chairperson of each recognized political party listed on the official ballot at the last gubernatorial*493 election whose candidate for governor received at least 10% of the total votes cast for that office may certify to the board that the party will participate in the presidential preference primary. For each party filing such a certification, the voters of this state shall at the spring election be given an opportunity to express their preference for the person to be the presidential candidate of that party.
(b) On the last Tuesday in January in each year in which electors for president and vice president are to be elected, there shall be convened in the capitel a committee consisting of, for each party filing a certification under this subsection, the state chairman of that state party organization or the chairman's designee, one national committeeman and one national committeewoman designated by the state chairman; the speaker and the minority leader of the assembly or their designees, and the president and the minority leader of the senate or their desig-nees. All designations shall be made in writing to the board. This committee shall organize by selecting an additional member who shall be the chairman and shall determine, and certify to the hoard no later than on the Friday following the last Tuesday in January, the names of all candidates of the political parties represented on the committee for the office of president of the United States. The committee shall place the names of all candidates whose candidacy is generally advocated or recognized in the national news media throughout the United States on the ballot, and may, in addition, place the names of other candidates on the ballot. The committee shall have sole discretion to determine that a candidacy is generally advocated or recognized in the national news media throughout the United States.
(c) No later than 5 p.m. on the 3rd Tuesday in February of each presidential election year, any person seeking the nomination by the national conven*494 tion of a political party filing a certification under this subsection for the office of president of the United States, or any committee organized in this state on behalf of and with the consent of such person, may submit to the board a petition to have the person's name appear on the presidential preference ballot. The petition may be circulated no sooner than the last Tuesday in January of such year and shall be signed by a number of qualified electors equal in each congressional district to not less than 1,000 signatures nor more than 1,500 signatures. The form of the petition shall conform to the requirements of s.8.40. All signers on each separate petition paper shall reside in the same congressional district.
(d) The board shall forthwith contact each person whose name has been placed in nomination under par. (b) and notify him or her that his or her name will appear on the Wisconsin presidential preference ballot unless he or she files, no later than 5 p.m. on the 3rd Tuesday in February of such year, with the board, a disclaimer stating without qualification that he or she is not and does not intend to become a candidate for the office of president of the United States at the forthcoming presidential election. The disclaimer may be filed with the board by certified mail, telegram or in person.
(2) Ballots. The form of the official ballots shall be prescribed by the board under s.5.60(8).
(3) Reporting of results. No later than May 15 following the presidential preference vote, the board shall notify each state party organization chairperson under sub. (l)(b) of the results of the presidential preference vote cast within the state and within each congressional district.
On February 26,1992, one of the original petitioners filed a "special petition" asking that the name of Harold E. Stassen be included in the names of candidates sought to be placed on the Republican presidential preference ballot. Because our order directs the placement of the names of all candidates who have sought ballot placement in this action, including Mr. Stassen, it is unnecessary that we act on the petition, which was not signed by the purported petitioner or anyone on his behalf but by the attor
The court is informed that on March 3, 1992 the Elections Board will send to the county clerks a list of the names to be printed on the presidential preference ballot. The election will be held April 7,1992 and the law requires each county clerk to have the official ballot prepared and to distribute them to the municipal clerks no later than 22 days before the date of the election. Section 7.10(3)(a), Stats.
Section 8.12(1)(b), Stats, provides:
On the last Tuesday in January in each year in which electors for president and vice president are to be elected, there shall be convened in the capítol a committee consisting of, for each party filing a certification under this subsection, the state chairman of that state party organization or the chairman's designee, one national committeeman and one national committeewoman designated by the state chairman; the speaker and the minority leader of the assembly or their designees, and the president and the minority leader of the senate or their designees. All designations shall be made in writing to*487 the board. This committee shall organize by selecting an additional member who shall be the chairman and shall determine, and certify to the board no later than on the Friday following the last Tuesday in January, the names of all candidates of the political parties represented on the committee for the office of president of the United States. The committee shall place the names of all candidates whose candidacy is generally advocated or recognized in the national news media throughout the United States on the ballot, and may, in addition, place the names of other candidates on the ballot. The committee shall have sole discretion to determine that a candidacy is generally advocated or recognized in the national news media throughout the United States.
Section 8.12, Stats., is set out in its entirety in the Appendix to this opinion.
Dissenting Opinion
(dissenting). I dissent from the per curiam opinion filed this date for the following reasons.
In certiorari review, the reviewing court is limited to determining: (1) whether the [committee] kept within its jurisdiction; (2) whether it acted according to law; (3) whether its actions were arbitrary, oppressive or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that it might reasonably make the order or determination in question.
In a certiorari case, the court is not allowed to consider matters outside the record. State ex rel. Kaczkowski v. Fire & Police Comm., 33 Wis. 2d 488, 504, 148 N.W.2d 44 (1967).
This court has held that mandamus does not lie to compel the manner in which a government body or office exercises statutorily conferred discretion. State ex rel. Ahlgrimm v. State Elections Bd., 82 Wis. 2d 585, 597, 263 N.W.2d 152 (1978), cited with approval in Labor & Farm Party v. Elections Board, 117 Wis. 2d 351, 358, 344 N.W.2d 177 (1984). To the extent the Selection Committee's decision not to place the petitioner aspirants, or some of them, on the ballot through this method represented an exercise of the committee's discretion under the statute, mandamus is not an available remedy.
This court's review in this case, therefore, is strictly limited to the issues of whether the Selection Committee acted outside its grant of authority from the legislature and whether the committee committed any errors of law
The Presidential Preference Selection Committee is a legislatively created political body. It is composed of representatives of Wisconsin's political parties who have met the requirements of the statute in garnering the requisite number of votes at the previous gubernatorial election. The legislature intended that the committee make political decisions and therefore constituted the committee with individuals active in partisan political affairs, people who would therefore be knowledgeable about state and national political affairs.
The citation to State ex rel. LaFollette v. Democratic Party, 93 Wis. 2d 473, 287 N.W.2d 519 (1980), is simply a ploy on the part of the majority in its vain attempt to lend credibility to its position. One does not need to be a political activist to recognize that by the composition of the Selection Committee, the legislature directed the committee to make political decisions. The open primary was the thrust of the LaFollette case. Wisconsin does indeed have an open primary, and the statutes under consideration in this case clearly do nothing
Section 8.12(l)(b), Stats., provides in part:
The committee shall place the names of all candidates whose candidacy is generally advocated or recognized in the national news media throughout the United States on the ballot, and may, in addition, place the names of other candidates on the ballot.
The committee shall have sole discretion to determine that a candidacy is generally advocated or recognized in the national news media throughout the United States.
(Emphasis added.) The wording of sec. 8.12(1)(b) first requires that the committee determine who are the candidates of the political parties represented on the committee. I conclude that the legislature's use of the word candidates in sec. 8.12(1)(b) was purposeful and that the word candidates does not mean all persons purporting to be candidates. Section 8.12 only requires that the committee place on the ballot the names of candidates who meet the judgment call by the committee that said candidates meet the national news media criteria essential to their having a place on the ballot. Section 8.12 does not require that the committee place on the ballot the names of all persons who are purporting to be candidates of a particular party.
Seven candidates were placed on the respective ballots by unanimous consent, and, after considerable discussion on the motion made by a Democrat to place David Duke's name on the Republican ballot through this method, the motion was defeated. That decision cannot be considered arbitrary or capricious or an abuse of discretion. The placement of David Duke's name on the ballot as a Republican was proposed and supported in strenuous argument only by the representatives of the Democratic party, and only representatives of the Democratic party recognized David Duke as being a Republican candidate.
The statute does not require placing a person's name on the ballot once some specified quantum of national recognition is reached. The statute leaves the questions of relevance and sufficiency of the evidence to the Selection Committee. The failure to nominate all of those individuals whose names were not placed on the ballot was a judgment call by a majority of the Selection Committee that those persons were not individuals "whose candidacy is generally advocated or recognized in the national news media throughout the United States . . .." The legislature granted broad discretion to this
Furthermore, the statute itself provides an alternative method whereby all of the persons granted relief today could have obtained ballot placement. Under sec. 8.12(l)(c),
Had the majority used the proper standard of review, which is by certiorari rather than mandamus, it is clear that of necessity they would have found that the Presidential Preference Selection Committee acted properly in that (1) it kept within its jurisdiction; (2) it acted according to law; (3) its actions were not arbitrary, oppressive, or unreasonable and did in fact represent its judgment; and (4) the evidence was such that it might have reasonably made the determinations it made.
I therefore dissent. I am authorized to state that Justices William G. Callow and Donald W. Steinmetz join in this dissenting opinion.
Section 8.12(l)(c), Stats., provides as follows:
8.12 Presidential preference vote. (1) Selection of names for ballot. . ..
(c) No later than 5 p.m. on the 3rd Tuesday in February of each presidential election year, any person seeking the nomination by the national convention of a political party filing a certification under this subsection for the office of president of the United States, or any committee organized in this state on behalf of and with the consent of such person, may submit to the board a petition to have the person's name appear on the presidential preference ballot. The petition may be circulated no sooner than the last Tuesday in January of such year and shall be signed by a number of qualified electors equal in each congressional district to not less than 1,000 signatures nor more than 1,500 signatures. The form of the petition shall conform to the requirements of s.8.40. All signers on each separate petition paper shall reside in the same congressional district.
Reference
- Full Case Name
- Eugene McCARTHY, Larry Agran, Lyndon H. LaRouche, Jr., David E. Duke, David Wirtz, Michael Johnson, William Spransy, Ruth E. Brown, Stephen Hauser and Emmanuel L. Branch, Petitioners, DEMOCRATIC PARTY OF WISCONSIN, Petitioner-Intervenor, v. ELECTIONS BOARD, State of Wisconsin, 1992 Presidential Preference Selection Committee, State of Wisconsin, Gordon Baldwin, in His Official Capacities as Chair of the Elections Board and as Chair of the 1992 Presidential Preference Selection Committee; David Opitz, Helen Bie, Michael Grebe, Jeffrey Neubauer, Paula Dorsey, Larry Longley, Fred A. Risser, Michael Ellis, Walter J. Kunicki and David Prosser in Their Official Capacities as Members of the 1992 Presidential Preference Selection Committee, Respondents, REPUBLICAN PARTY OF WISCONSIN, Respondent-Intervenor
- Cited By
- 2 cases
- Status
- Published