Communist Party of Indiana v. Whitcomb

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 those candidates 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 the government, 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 district court 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 the party must be placed on the ballot if it filed the oath.

The party responded by filing the pledge in writing, but with a disclaimer of sorts. 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 action for the forcible overthrow of the government, and not of principles divorced from action.'" The election board found the pledge in that form to not meet its 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 ruling and 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. Sendak pleaded:

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.