Communist Party of Indiana v. Whitcomb

Appellant
The Communist Party of Indiana, certain of its officers and potential voters,and its candidates for president and vice-president in the 1972 general election
Appellee
The Indiana state election board and its members
Appellant's Claim
That the state's rule requiring political parties to submit a written oath stating that they will not advocate the overthrow of the federal, state or local government by violence or force in order to be placed on an election ballotwas a violation of the First and Fourteenth Amendments.
Chief Lawyer for Appellant
Sanford Jay Rosen
Chief Lawyer for Appellee
Theodore L. Sendak, Attorney General of Indiana
Justices for the Court
Harry A. Blackmun, William J. Brennan, Jr. (writing for the Court), Warren E.Burger, William O. Douglas, Thurgood Marshall, Lewis F. Powell, Jr., WilliamH. Rehnquist, Potter Stewart, Byron R. White
Justices Dissenting
None
Place
Washington, D.C.
Date of Decision
9 January 1974
Decision
That the law which forced the party to declare its non-intention to overthrowthe government was unconstitutional.
Significance
Reaffirmed the Court's established position declaring loyalty oaths unconstitutional.
In the 1972 presidential election the Communist Party in the United States fielded a slate of candidates for president and vice-president. The Communist Party of Indiana fielded a slate for the first time and attempted to get thosecandidates on the state ballot. Indiana had a law, however, that stated no political party could get on the ballot unless it first submitted a written pledge stating that it had no intention of ever advocating the overthrow of thegovernment, whether local, state or national, by any means involving violence or force. The Communist Party declined to file such a pledge, and was therefore denied a place on the ballot. The party filed a motion with the districtcourt in that state asking that the law be ruled unconstitutional and that the party be ordered placed on the ballot. A three-judge court ruled that theparty must be placed on the ballot if it filed the oath.
The party responded by filing the pledge in writing, but with a disclaimer ofsorts. A note on the pledge pointed out that "The term advocate as used herein has the meaning given it by the Supreme Court of the United States in Yates v. United States . . . `the advocacy and teaching of concrete actionfor the forcible overthrow of the government, and not of principles divorcedfrom action.'" The election board found the pledge in that form to not meetits satisfaction, and again denied the party a place on the ballot, and the party again sought help from the district court, but was denied. The party briefly sought emergency help from the U.S. Supreme Court, but agreed to withdraw that request as the district court agreed to reconsider its earlier rulingand decide if a pledge that was consistent with the Yates decision should be sufficient to meet the law's requirements. The court eventually decided not to reverse its earlier decision, however, and the party was forced to take its case to the Supreme Court at the end of November, too late to be placed on the ballot but not too late to prove its point and win its case.
The state sent Attorney General Theodore L. Sendak to argue its case. Sendakpleaded:

It is fraudulent for a group seeking by violent revolution to overthrow our democratic form of government to disguise itself as a political party and use the very forms of the democracy it seeks to subvert in order to gain support and carry on its nefarious ends.

Court Strikes Law Down
The Supreme Court was unanimous in deciding that the district courts ruled incorrectly, striking down Indiana's law. Justice Brennan, writing the majorityopinion, said:

This principle that `the constitutional guarantees of free speech and free press do not permit a state to forbid or proscribeadvocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely toincite or produce such action' has been applied not only to statutes that directly forbid or proscribe advocacy, . . . but also to regulatory schemes thatdetermine eligibility for public employment, . . . tax exemptions, . . . andmoral fitness justifying disbarment. Appellees argue that the principle should nevertheless not obtain in cases of state regulation of access to the ballot. We perceive no reason to make an exception, and appellees suggest none. Indeed, all of the reasons for application of the principle in the other contexts are equally applicable here.

The Court also emphasized the importance of the case to the integrity of thepolitical process, quoting previous decisions:

Thus, burdening access to the ballot, rights of association in the political party of one's choice, interests in casting an effective vote and in running for office, not because the party urges others "to do something, now or in the future . . . but. . . merely to believe in something" Yates is to infringe interestscertainly as substantial as those in public employment, tax exemption, or thepractice of law. For "the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights . . ." (Reynolds v. Sims) "Other rights, even the most basic, are illusoryif the right to vote is undermined." (Wesberry v. Sanders)

Justice Powell was joined in a concurring opinion by three other justices, inwhich he agreed with the result but felt the decision should have been reached for a much more basic issue, that the Democratic and Republican Parties had also not filed affidavits promising they would not advocate the violent overthrow of the government. He wrote:

In my view it was quite unnecessary to reach the issue addressed by the Court. It was established at trialthat the appellees had certified the Democratic and Republican Parties despite the failure of party officials to submit the prescribed affidavits . . . In Williams v. Rhodes, . . . this Court held that a discriminatory preference for established parties under a state's electoral system can be justified only by a "compelling state interest." In the present case, no colorablejustification has been offered for placing on appellants burdens not imposedon the two established parties. It follows that the appellees' discriminatoryapplication of the Indiana statute denied appellants equal protection underthe Fourteenth Amendment.

The lasting import of the case, however, came in the confirmation of a principle the Court had earlier stated in the National Association for the Advancement of Colored People v. Button case:

Precision of a regulation must be the touchstone in an area so closely touching our most preciousfreedoms.

Related Cases

• National Association for the Advancement of Colored People v. Button, 371 U.S. 145 (1963).
  
• Wesberry v. Sanders, 376 U.S. 1 (1964).
  
• Reynolds v. Sims, 377 U.S. 533 (1964).
  
• Williams v. Rhodes, 393 U.S. 523 (1968).