Kusper v. Pontikes, 414 U.S. 51 (1973)

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

Syllabus

Appellee, a qualified Chicago voter who voted in a February 1971 Republican primary involving nominations for municipal officers, challenges the constitutionality of § 7-43(d) of the Illinois Election Code, under which she was barred from voting in a March 1972 Democratic primary. Section 7-43(d) prohibits a person from voting in the primary election of a political party if he has voted in the primary of any other party within the preceding 23 months, an exception being made if the primary is of a "political party within a city . . . only." Appellants contended, inter alia, that the three-judge District Court, which held the statute invalid, should have abstained, because the state courts might have found the statutory exception applicable to the 1971 primary.

Held:

1. The District Court did not err in declining to abstain from making a constitutional ruling in view of an Illinois Supreme Court adjudication confining the statutory exception to political parties entitled to nominate only for city offices and making it inapplicable to the Democratic and Republican parties. Appellee is thus not relieved of the bar of the 23-month rule. Pp. 53-56.

2. Section 7-43(d) unconstitutionally infringes upon the right of free political association protected by the First and Fourteenth Amendments by "locking" the voter in his preexisting party affiliation for a substantial period of time following his participation in any primary election, and the State’s legitimate interest in preventing party "raiding" cannot justify the substantial restraint of the 23-month rule. Rosario v. Rockefeller, 410 U.S. 752, distinguished. Pp. 56-61.

345 F.Supp. 1104, affirmed.

STEWART, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, WHITE, MARSHALL, and POWELL, JJ., joined. BURGER, C.J., concurred in the result. BLACKMUN, J., filed a dissenting opinion, post, p. 61. REHNQUIST, J., filed a dissenting opinion, in which BLACKMUN, J., joined, post, p. 65.