OPINION OF THE JUSTICES TO THE GOVERNOR.

To His Excellency, the Governor of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectfully respond to the questions set forth in the Governor's request dated April 5, 1982, and transmitted to the Justices on April 6, 1982.

General Laws c. 53, Section 44, as amended through St. 1981, c. 278, Section 1, provides in part that "[t]he nomination of candidates for nomination at State primaries shall be by nomination papers." There is pending before the Governor for his approval House Bill No. 5852, which would amend c. 53,

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Section 44, by inserting after the first sentence the following sentence: "Notwithstanding the charter, rule or by-law of a political party, any candidate, who is enrolled in such political party, submitting nomination papers subject to the provisions of this chapter shall be a candidate for nomination at the state primary." Article Six, Section III, of the charter of the Democratic party of the Commonwealth of Massachusetts, provides, "There shall be a State Convention in even-numbered years for the purpose of endorsing candidates for statewide offices in those years in which such office is to be filled. Endorsements for statewide office of enrolled Democrats nominated at the Convention shall be by majority vote of the delegates present and voting, with the proviso that any nominee who receives at least 15 percent of the Convention vote on any ballot for a particular office may challenge the Convention endorsement in a State Primary Election."

Stating his uncertainty "as to the necessity or constitutionality of H. 5852 if enacted into law," the Governor requests, pursuant to the authority contained in Pt. II, c. 3, art. 2, of the Massachusetts Constitution, as amended by art. 85 of the Articles of Amendment, the opinion of the Justices on the following questions of law:

"1. Does the fifteen percent rule in the Democratic Charter supersede the current provisions of General Law, Chapter 53, section 44, or can a candidate be placed on the Democratic State Primary Ballot by nomination papers without having received fifteen percent of the vote at the party convention?

"2. Would enactment of H. 5852 allow a candidate to be placed on the Democratic State Primary Ballot by nomination papers without having received fifteen percent of the vote at the party convention?"

The constitutional provision which empowers us to answer questions propounded by the Governor, the Council, and the Legislature, restricts our authority to "important

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questions of law" and to "solemn occasions." Part II, c. 1, Section 1, art. 2, of the Massachusetts Constitution. To preserve the principle of separation of powers, fundamental in our system of government, we are bound strictly to observe these constitutional limitations. Answer of the Justices, 362 Mass. 914, 916-917 (1973). As the Justices have advised, "By a solemn occasion the Constitution means some serious and unusual exigency. It has been held to be such an exigency when the Governor or either branch of the Legislature, having some action in view, has serious doubts as to their power and authority to take such action, under the Constitution, or under existing statutes." Answer of the Justices, 373 Mass. 867, 871 (1977), quoting from Answer of the Justices, 148 Mass. 623, 625-626 (1889).

Because question number 1 inquires only about the legal effect of the current statute in light of the Democratic party charter, and not about the Governor's authority to take action, there is no solemn occasion authorizing us to answer. Opinion of the Justices, 383 Mass. 895, 914-915 (1981). It may well be that the Justices' answer to question number 1 would help the Governor determine the "necessity" of House No. 5852 in view of the present statute, a concern expressed in the request. However, whether the bill is necessary raises the question whether it is wise or expedient for the Governor to approve the bill. The Justices are not empowered to answer questions bearing on the wisdom or expediency of proposed legislation. Answer of the Justices, 319 Mass. 731, 734 (1946). Opinion of the Justices, 314 Mass. 767, 771-772 (1943). Not having the authority to answer question number 1, we respectfully request that we be excused from answering it.

In the context of the Governor's expressed uncertainty as to the constitutionality of House No. 5852, we interpret question number 2 to inquire whether, if House No. 5852 were approved, G. L. c. 53, Section 44, as thereby amended, would abridge the constitutional rights of the Democratic party and its members to associate by allowing candidates to be placed on the Democratic State primary ballot in contravention

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of the party's charter. The Governor has a present duty to act on House No. 5852. Part II, c. 1, Section 1, art. 2, of the Massachusetts Constitution. This duty, and the Governor's expressed doubts about whether House No. 5852 would be constitutional if he approved it, present a solemn occasion requiring our answer to the second question. See Opinion of the Justices, 314 Mass. 767, 772 (1943).

"The [Democratic Party of the Commonwealth] and its adherents enjoy a constitutionally protected right of political association. `There can no longer be any doubt that freedom to associate with others for the common advancement of political beliefs and ideas is a form of "orderly group activity" protected by the First and Fourteenth Amendments. . . . The right to associate with the political party of one's choice is an integral part of this basic constitutional freedom.' Kusper v. Pontikes, 414 U.S. 51, 56-57 (1973). `And of course this freedom protected against federal encroachment by the First Amendment is entitled under the Fourteenth Amendment to the same protection from infringement by the States.' Williams v. Rhodes, 393 U.S. 23, 30-31 (1968). Moreover, `[a]ny interference with the freedom of a party is simultaneously an interference with the freedom of its adherents.' Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957). See NAACP v. Button, 371 U.S. 415, 431 (1963)." Cousins v. Wigoda, 419 U.S. 477, 487-488 (1975). "Freedom of association would prove an empty guarantee if associations could not limit control over their decisions to those who share the interests and persuasions that underlie the association's being." Democratic Party of U.S. v. Wisconsin, 450 U.S. 107, 122 n.22 (1981), quoting L. Tribe, American Constitutional Law 791 (1978). A determination of who will appear on a general election ballot as the candidate endorsed by an identified political party is a critical decision for that party. The party, therefore, has a substantial interest, implicit in its freedom of association, to ensure that party members have an effective role in that decision. Democratic Party of U.S. v. Wisconsin, supra.

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Within the Commonwealth, the winner by a plurality of a party primary becomes that party's candidate for Statewide office in the general election. G. L. c. 53, Section 2. Voting in party primaries is limited to enrolled party members and unenrolled voters who enroll at the polls just before receiving ballots. G. L. c. 53, Section 37. Apart from Article Six, section III, of the State Democratic party charter, in order to be placed on a party's primary election ballot, a candidate for Statewide office must be an enrolled member of that party, G. L. c. 53, Section 48, and submit nominating papers signed by at least 10,000 registered voters, c. 53, Section 44, who may be enrolled in that party or unenrolled. G. L. c. 53, Section 46. Therefore, apart from Article Six, section III, of the State Democratic party charter, a candidate for Statewide election could be placed on the Democratic party ballot and win the primary, thus becoming entitled to be placed on the general election ballot as the Democratic party candidate, with little or no support from the regular party membership. [Note 1]

The State Democratic party charter, Article Six, Section III, proviso that any nominee who receives at least 15% of the vote at the State convention may challenge the convention endorsement, by negative implication adds to the statutory requirement of nomination papers for placement on the primary ballot the further requirement that a candidate must receive at least fifteen percent of the convention vote. This has the double effect of limiting the number of candidates on the primary ballot, thereby eliminating the confusion that may result from too many candidates, and of limiting the candidates to those with significant party support, thereby giving the party members an effective role in choosing the party's candidate in the general election. The State has been held to have a compelling interest in limiting the number of candidates in order to prevent voter confusion. American Party v. White, 415 U.S. 767, 780-781 (1974).

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Storer v. Brown, 415 U.S. 724, 732 (1974). A political party has a parallel interest.

If House No. 5852 were approved, G. L. c. 53, Section 44, as thereby amended, would appear to override the charter requirement of 15% of the convention vote for placement on the primary ballot and, together with c. 53, Section 46, would eliminate the Democratic party's control of who its candidate in the general election would be. This would substantially infringe the right of freedom of association of the Democratic party and its members, and therefore, to pass constitutional muster, it must serve a compelling State interest, Sears v. Secretary of the Commonwealth, 369 Mass. 392, 397 (1975), and do so with as little infringement on constitutional rights as possible. See Riddell v. National Democratic Party, 508 F.2d 770, 776-778 (5th Cir. 1975). We must apply "strict scrutiny" to its justification and operation. Bachrach v. Secretary of the Commonwealth, 382 Mass. 268, 276 (1981).

The Commonwealth unquestionably has a compelling interest in the over-all regularity of the election process, including limitation of the number of candidates on the ballot so as to avoid voter confusion and ensuring that the candidates whose names appear on the ballot have significant community support. American Party v. White, 415 U.S. 767, 782 (1974). This applies to the conduct of primary elections, Kusper v. Pontikes, 414 U.S. 51 (1973); Rosario v. Rockefeller, 410 U.S. 752 (1973), which are an important part of the procedure by which the ultimate office holder is chosen. Sears v. Secretary of the Commonwealth, supra at 398. These interests are served by the requirement that each candidate for Statewide office obtain the signatures of at least 10,000 registered voters on nomination papers, G. L. c. 53, Section 44, but they are not served by the elimination of a 15% convention vote requirement for placement on the primary ballot. Elimination of the Democratic party charter requirement could only increase the number of candidates on the primary ballot, with a resulting increased potential for voter confusion.

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We assume that House No. 5852 was designed to promote the integrity of the election process. Nevertheless, the Commonwealth's compelling interest in the integrity of the election process does not constitutionally justify elimination of party control over who the party's candidate in the general election will be. This view finds support in Democratic Party of U.S. v. Wisconsin, supra. In that case, the United States Supreme Court struck down a State statute that compelled the party to seat delegates at its national convention who were bound by the statute to vote on the first ballot with the results of a primary election in which any registered voter could participate regardless of party affiliation. This was contrary to the national party rules. Wisconsin impermissibly attempted to override the national party's attempt to limit "those who could participate in the processes leading to the selection of delegates to their National Convention." Id. at 122. General Laws c. 53, Section 44, as it would be amended by House No. 5852, would attempt to override the State Democratic party's effort to ensure that regular party members have a substantial voice in the selection of its candidates for Statewide office, and that, at least in conjunction with Sections 44, 46, and 37 of G. L. c. 53, is impermissible. If the law of the Commonwealth were to require that nomination papers be signed only by regular members of the party, contrary to c. 53, Section 46, or that only regular members of the party may vote in the primary, contrary to c. 53, Section 37, then c. 53, Section 44, as it would be amended by House No. 5852, would be less intrusive on a political party's constitutional rights. However, we express no opinion on whether it would be sufficiently less intrusive to be constitutionally sound, since that is not the question before us, nor need we consider whether any proviso of the Constitution of the Commonwealth might prohibit the proposed enactment.

We answer question number 2, as interpreted by us above, as follows: If House No. 5852 were approved, G. L. c. 53, Section 44, as thereby amended, would abridge the constitutional rights of the Democratic party and its members to associate by allowing candidates to be placed on the

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Democratic State primary ballot in contravention of the party's charter.

The foregoing opinion is submitted by the Chief Justice and the Associate Justices subscribing hereto on the 23rd day of April, 1982.

EDWARD F. HENNESSEY

HERBERT P. WILKINS

PAUL J. LIACOS

RUTH I. ABRAMS

JOSEPH R. NOLAN

NEIL L. LYNCH

FRANCIS P. O'CONNOR