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Gerald Trudell and Myron Dorfman v. State of Vermont and Deborah Markowitz

March 29, 2013


On Appeal from Superior Court, Washington Unit, Civil Division September Term, 2012 Geoffrey W. Crawford, J.

The opinion of the court was delivered by: Skoglund, J.

Trudell and Dorfman v. State and Markowitz (2011-311)

2013 VT 18

Supreme Court

PRESENT: Reiber, C.J., Skoglund and Burgess, JJ., and Cohen and Eaton, Supr. JJ., Specially Assigned

¶ 1. Independent candidate Gary Trudell and voter Myron Dorfman challenge the constitutionality of Vermont's schedule for filing candidate petitions, alleging that the uniform deadline for all party (major and minor) and independent candidates is discriminatory and impermissibly impinges upon the associational and voting rights of candidates and voters under the First Amendment to the United States Constitution. Because we conclude that the filing deadline is a reasonable, nondiscriminatory regulation, justified by Vermont's regulatory interests, we affirm the decision of the lower court in declaring the deadline constitutional.

¶ 2. In 2009, Congress enacted the Military Overseas Voter Empowerment (MOVE) Act to address reports that U.S. troops stationed overseas had difficulties voting by absentee ballot. See 42 U.S.C. § 1973ff-1(a)(8)(A). The Act imposed fixed deadlines by which states had to prepare their ballots. For general elections, ballots are required to be completed 45 days in advance of the election. Id. Vermont previously held primary elections relatively late in the electoral cycle on the second Tuesday in September. To comply with the requirements of the MOVE Act, Vermont enacted Act 73. 2009, No. 73 (Adj. Sess.), § 1. Section 1 of Act 73 moved Vermont's primary election date to the fourth Tuesday in August--theoretically the latest possible date by which the Secretary of State could receive the primary results from the towns, complete the canvas process, prepare the ballot styles, and receive the general election ballots back from the printers in time to meet the 45-day federal deadline. 17 V.S.A. § 2351 (setting primary date to comply with MOVE Act). Because of the new primary election date, the Legislature moved the deadline for primary registration to mid-June. Id. § 2356 ("not later than 5:00 p.m. on the second Thursday after the first Monday in June").

¶ 3. The Legislature enacted an additional change: the Legislature moved the date by which independent candidates were required to file their statements of nomination to run in the general election so as to make that deadline coincide with the deadline by which party candidates were required to file their primary petitions. Compare 2009, No. 73 (Adj. Sess.), §1(codified at 17 V.S.A. § 2402(d)), with 17 V.S.A. § 2402(d) (prior to amendment). Independent candidates were previously permitted to file nominating petitions up to three days after the primary election. The Director of Elections testified that a change was required to comply with the MOVE Act but believed that the Thursday before the primary (two working days plus the intervening weekend) would provide adequate time to review the independents' petitions and identify all candidates, including those running on multiple tickets.

¶ 4. Instead of four calendar days before the primary election, the Legislature required independent candidates to register on the same day as primary candidates. That is, independents now have to file their petition for candidacy by the second Thursday after the first Monday in June, advancing the registration date by approximately seventy days. See 17 V.S.A. § 2356.

¶ 5. Plaintiff Gerald Trudell has a longstanding interest in politics and the environment. To bring attention to environmental issues, Trudell first ran for Vermont's seat in the U.S. House of Representatives in 2006, claiming 1000 votes. He ran again in 2008 and acquired 10,000 votes. In 2010, Trudell decided to run again, two days before the newly-implemented June deadline but was unable to collect the requisite signatures for registration. In late August, he filed a petition anyway but was denied a place on the ballot due to his delinquency. He ran instead as a write-in candidate.

¶ 6. Plaintiff Myron Dorfman is a Vermont resident and voter, and occasional supporter of Mr. Trudell. Dorfman voted for Trudell in 2006. Dorfman, like many Vermonters, is more attracted to individual candidates than to parties, generally. He opposes a June registration deadline for independent candidates because he believes it limits his choice as a voter. For example, he would have voted for Trudell in 2010, but Trudell was not on the ballot because of the advanced deadline. Consequently, both Trudell and Dorfman contend that the new registration date for independent candidates violates their rights, as candidate and voter, under the First and Fourteenth Amendments of the U.S. Constitution and that the trial court erred in finding it constitutional. This contention is unavailing.

¶ 7. It is beyond cavil that the "rights of qualified voters to cast votes effectively and the rights of individuals to associate for political purposes are of the most fundamental significance under our constitutional structure." Council of Alt. Political Parties v. Hooks, 179 F.3d 64, 70 (3rd Cir. 1999) (quotations omitted); see also Anderson v. Celebrezze, 460 U.S. 780, 787 (1983). The right to vote in any manner and the right to associate for political purposes, however, is not absolute. Burdick v. Takushi, 504 U.S. 428, 433 (1992). Article I of the U.S. Constitution provides that states may impose reasonable time, place, and manner restrictions on voting, and thus, courts have recognized that states retain the power to regulate their own elections. See U.S. Const. art. I, § 4, cl. 1; Sugarman v. Dougall, 413 U.S. 634, 647 (1973). Common sense, as well as constitutional law, compels the conclusion that government must play an active role in structuring elections, and there must be a substantial regulation of elections if they are to be fair and honest. See, e.g., Storer v. Brown, 415 U.S. 724, 730 (1974).

¶ 8. The U.S. Supreme Court has set forth the test for determining the constitutionality of ballot access restrictions:

A court considering a challenge to a state election law must weigh "the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate" against the "precise interests put forward by the State as justifications for the burden imposed by its rule," taking into ...

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