United States District Court, District of New Jersey, D.
September 5, 2002
ROGER MERLE AND GREEN PARTY STATE COMMITTEE, INC., PLAINTIFFS,
UNITED STATES OF AMERICA, DEFENDANT.
The opinion of the court was delivered by: Irenas, District Judge.
Plaintiff Roger Merle, a letter carrier with the United States Postal
Service, seeks to run, as a Green Party candidate, for the office of
United States Representative. However, as a federal employee, he is
prohibited by the terms of the Hatch Act, 5 U.S.C. § 7323 (a)(3), et
seq., from seeking elective office in a partisan election. Accordingly,
Merle has filed this action seeking a declaration that the Hatch Act is
unconstitutional, as applied, as contrary to the Qualifications Clause of
Article I of the United States Constitution.
Article I, § 2, cl. 2 of the Constitution provides that "No Person
shall be a Representative who shall not have attained the Age of twenty
five Years, and have been seven Years a Citizen of the United States, and
who shall not, when elected, be an inhabitant of that State in which he
shall be chosen." These qualifications have long been recognized as
exclusive. and may not be modified by either Congress or the States. See
U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 827, 115 S.Ct. 1842.
131 L.Ed.2d 881 (1995) ("[N]either Congress nor the States should possess
the power to supplement the exclusive qualifications set forth in the
text of the Constitution."); Powell v. McCormack, 395 U.S. 486, 89 S.Ct.
1944, 23 L.Ed.2d 491 (1969). In this case, Plaintiffs contend that the
Hatch Act impermissibly adds to the qualifications for the office of
Representative by mandating that, in addition to the criteria set forth
by the Constitution, Representatives must meet the additional requirement
that they not be federal employees at the time of their election. The
Court, however, disagrees.
In arguing that the Hatch Act is constitutional as applied to Merle,
the United States contends that the Act is merely a permissible
regulation of federal employee activities. Specifically, the government
notes that the Act does not disqualify any individual from running for
public office, but instead provides for the removal or suspension from
public employment of any employee who is a candidate in a partisan
election. See 5 U.S.C § 7326. As the government correctly points
out, this distinction, between laws that penalize a candidate as an
employee, and those that prohibit an individual from participation in an
election, has been explicitly countenanced by a number of courts
considering challenges under the Qualifications Clause.
The Hatch Act's prohibition on political activities by federal
employees has been upheld by the Supreme Court on a number of grounds,
although the Qualifications Clause is not one of them. In United States
Civil Service Commission v. National Association of Letter Carriers,
413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973), for instance, the
Court stated the broad proposition that neither the First Amendment "nor
any other provision of the Constitution" prohibits Congress from
regulating the conduct of federal employees by prohibiting such
activities as organizing a political party, participating in fund-raising
activities or "becoming a partisan candidate for, or campaigning for, an
elective public office." Id. at 556, 93 S.Ct. 2880.
It is this power of Congress, and the States, to regulate the conduct
employees that has been the consistent basis for sustaining so-called
"resign-to-run" statutes against constitutional challenge. In Joyner v.
Mofford, 706 F.2d 1523 (9th Cir. 1983), the Ninth Circuit sustained,
against a Qualifications Clause challenge, a provision of the Arizona
Constitution forbidding state officials from remaining in office while
running for elected federal positions. Id. at 1528. In so holding, the
court noted that "the courts considering challenges to state laws relying
on the Qualifications Clause have distinguished between state provisions
which bar a potential candidate from running for federal office, and
those which merely regulate the conduct of state officeholders. The
former category of laws imposes additional qualifications on candidates
and therefore violates the Qualifications Clause, while the latter
category is constitutionally acceptable since it merely bars state
officeholders from remaining in their positions should they choose to run
for federal office." Id.
The validity of this distinction was reaffirmed by the Supreme Court,
in U.S. Term Limits, where the Court, in striking down Arkansas's term
limits scheme, noted the validity of resign-to-run statutes which "place
no obstacle between a candidate and the ballot or his nomination or his
election." 514 U.S. at 835 n. 48, 115 S.Ct. 1842. The Hatch Act, as
applied to Plaintiff, falls squarely within this category of permissible
regulations, as it does not prevent his participation as a candidate for
the office of Representative, but instead constitutes a valid attempt on
the part of Congress to insulate public employees from partisan political
influence. See also, Signorelli v. Evans, 637 F.2d 853 (2d Cir. 1980)
(upholding, against Qualifications Clause challenge, a New York law
requiring that judges resign before running for federal office); Thorsted
v. Gregoire, 841 F. Supp. 1068, 1081-82 (W.D.Wash. 1994) (distinguishing
resign-to-run cases from law establishing term limits as condition for
ballot access). Indeed, Plaintiff need not even resign from his position
in order to appear on the ballot, as the burden is upon the government to
respond to his candidacy with a sanction of removal or suspension. Thus,
while the Hatch Act will force Merle to choose between remaining in his
position as a postal carrier and his desire to seek elective office, the
need for this decision does not constitute an additional qualification
for the office of Representative and, consequently, the Act does not run
afoul of the Constitution.*fn1
Accordingly, Plaintiffs' motion for emergent declaratory relief will be
denied, while Defendant's motion to dismiss will be granted.