HELEN METROS & another [Note 1] vs. SECRETARY OF THE COMMONWEALTH & others. [Note 2]

LIACOS, J. This case involves a challenge to the Massachusetts election laws that prohibit a person who has been a member of a political party within the preceding ninety days from being listed on the ballot as an "unenrolled," or independent, candidate for election. The plaintiffs are Helen Metros, who wished to be listed on the November, 1984, ballot as an independent candidate for the State Senate, and Gertrude McEleny, a supporter of Metros. The plaintiffs brought an action for injunctive and declaratory relief to require the Secretary of the Commonwealth to place Metros's name on the ballot. The case was heard in the Superior Court in Middlesex County on stipulated facts. The judge dismissed the action, and the plaintiffs (1) appealed, and (2) moved in the Appeals Court for a stay of judgment and for injunctive relief pending appeal. A single justice of the Appeals Court denied the plaintiffs' motion. The plaintiffs appealed the order of the single justice, and the appeals were consolidated. [Note 3] We transferred the case to this court on our own motion.

We summarize the stipulated facts. Helen Metros was an unenrolled registered voter in the town of Arlington prior to March 13, 1984. [Note 4] On that date, Metros voted in the Democratic party presidential primary election. On March 14, 1984, she

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changed her enrollment from Democrat to unenrolled. On May 29, 1984, seventy-seven days after the Democratic party presidential primary, Metros filed her nomination papers as an independent candidate for the office of State Senator. She met all the qualifications to have her name printed on the ballot, except for the requirement that she obtain from the Arlington registrars of voters a certificate that she was not enrolled as a member of any political party during the preceding ninety days. [Note 5] The registrars were prohibited by statute from issuing the certificate because of Metros's enrollment in the Democratic party on March 13, 1984.

The plaintiffs argue that the Massachusetts statutes infringe several of their constitutional rights. (1) McEleny claims that she was denied her right of association because she could not cast her vote for the candidate of her choice. (2) Metros claims that the law places an unconstitutional condition -- relinquishing her constitutional right to seek elective office -- on the

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exercise of her constitutional right to vote in a party primary election. This limitation, Metros alleges, unconstitutionally forced her to choose between her right to associate with the Democratic party to participate in the party's selection of a presidential candidate and her right to associate with others to pursue election herself as a candidate not affiliated with a party. (3) Finally, Metros claims that she was denied equal protection of the laws because she, unlike any other unenrolled voter, was impermissibly burdened by the requirement that she give up her right to seek office as an unenrolled candidate in order to vote in the Democratic party presidential primary; and, unlike any other Democratic party candidate, she was burdened by the requirement that she give up her right to have her name appear on the ballot in order to vote in the Democratic party presidential primary.

1. Mootness. Before reaching the plaintiffs' arguments, we must consider whether the case presents a live issue for adjudication. The November, 1984, election has long since passed. Metros and McEleny can no longer be granted the relief they sought. It is the general rule that courts decide only actual controversies. We follow that rule, and normally we do not decide moot cases. Monteiro v. Selectmen of Falmouth, 328 Mass. 391, 392-393 (1952). Sullivan v. Secretary of the Commonwealth, 233 Mass. 543, 546 (1919). There are, of course, exceptions to the general rule. We may choose to express our opinion on moot questions because of the public interest involved and the uncertainty and confusion that exist. Wellesley College v. Attorney Gen., 313 Mass. 722, 731 (1943). Additionally, an exception to the mootness doctrine is that the issue is "capable of repetition, yet evading review." Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 515 (1911). We have taken the same view, and we may answer a moot question "likely . . . to arise again in similar factual circumstances . . . where appellate review could not be obtained before the recurring question would again be moot." Lockhart v. Attorney Gen., 390 Mass. 780, 783 (1984) (collecting mootness cases). In Lockhart, we declined to exercise our discretion to answer a moot question. The plaintiffs there had been denied the

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opportunity to gather signatures for an initiative petition. We noted that the future circumstances of a similar initiative and changes in legislation made any future recurrence speculative, and that, if the issues were to reappear, "they need not evade review before they become moot." Id. at 785.

Here the circumstances are not so speculative. The Massachusetts statutes prescribe the last Tuesday in May as the deadline for filing nomination papers for the office of State Senator, among others. G. L. c. 53, Section 48 (1984 ed.). The statutes also set the date of the presidential primary on the second Tuesday in March in presidential election years. G. L. c. 53, Section 28 (1984 ed.). Between those two dates, the greatest possible number of days is eighty-four. As long as a ninety-day disaffiliation period applies, voting in the partisan presidential primary in March will disqualify an intended unaffiliated candidate whose nomination papers are due in May. The question is not unlikely to arise again.

A similar problem came before the United States Supreme Court in Moore v. Ogilvie, 394 U.S. 814 (1969). The complainants in Moore were independent candidates for positions as presidential electors who were denied listing on the ballot because of an Illinois statutory provision. When the case reached the Supreme Court, the issue of mootness was raised. The Court stated that "while the 1968 election is over, the burden . . . on the nomination of candidates for statewide officers remains and controls future elections, as long as Illinois maintains her present system as she has done since 1935. The problem is therefore `capable of repetition, yet evading review,' Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 515 [1911]. The need for its resolution thus reflects a continuing controversy . . ." Id. at 816. The case at bar is closely analogous to Moore, and under the doctrines of Wellesley College, supra, and Lockhart, supra, we choose to address it today. [Note 6]

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2. The voter's claim. McEleny has asserted that her right to associate with (by voting for) the candidate of her choice has been denied. While this may be true, we are not persuaded that this result has been brought about by unconstitutional means. In Lubin v. Panish, 415 U.S. 709 (1974), a challenge to candidate filing fees, the Court stated: "It is to be expected that a voter hopes to find on the ballot a candidate who comes near to reflecting his policy preferences on contemporary issues. This does not mean that every voter can be assured that a candidate to his liking will be on the ballot . . ." Lubin, supra at 716. The process of qualifying candidates may be constitutionally restricted to party primaries for party candidates and an alternative method for independent candidates. Jenness v. Fortson, 403 U.S. 431, 438 (1971). McEleny may, of course, write in the name of the candidate of her choice if that person has not qualified for the ballot. G. L. c. 54, Section 42 (1984 ed.).

3. Storer v. Brown. The defendants urge that the decision of the United States Supreme Court in Storer v. Brown, 415 U.S. 724 (1974), is dispositive of the plaintiffs' claims. The California Elections Code provisions challenged in Storer provided that the name of an independent candidate for office could not be printed on the ballot if that candidate had voted in the immediately preceding party primary election at which a candidate was nominated for the office he sought, Cal. Elec. Code Section 6830 (c) (Supp. 1974), [Note 7] or if the independent candidate had been registered as a member of a political party at any time during the twelve months preceding the primary election, Cal. Elec. Code Section 6830 (d) (Supp. 1974). Two of the plaintiffs were registered Democrats, one until January and the other until March, 1972. This party affiliation disqualified them from

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a ballot listing as independent candidates for the United States Congress under Section 6830 (d) (Supp. 1974). They challenged the constitutionality of the statute, claiming that it infringed their rights guaranteed by the First and Fourteenth Amendments to the United States Constitution. The Supreme Court held the statutory restrictions permissible. It found that the State's interests in the stability of its political system were compelling. Those interests outweighed the interests of the independent candidate in choosing not to disaffiliate from the party until less than twelve months before the primary election. Id. at 736. The statute furthered the stability of the political system by limiting ballot access to those who have qualified through either the partisan or nonpartisan route, and by preventing "candidacies prompted by short-range political goals, pique, or personal quarrel." Id. at 735.

The Justices previously have considered Storer's applicability to the restrictions of G. L. c. 53, Section 48, prior to its amendment [Note 8] in 1977. In Opinion of the Justices, 368 Mass. 819, 822-823 (1975), the Justices answered a question propounded by the House of Representatives on the constitutionality of a twenty-eight-day party disaffiliation period for independent candidates. Relying in part on the decision of the United States Supreme Court in Storer, the Justices opined that the disaffiliation requirement would not violate the rights of independent candidates under art. 9 of the Declaration of Rights of the Constitution of the Commonwealth. It was the opinion of the Justices that the Massachusetts twenty-eight-day disaffiliation period "tend[ed] to protect the true independent from the confusion and ballot congestion caused by party defectors who masquerade as independents in order to avoid the inconvenience or jeopardy of a party primary." Opinion of the Justices, supra at 823. The difference between the statutory twenty-eight-day provision examined there and the ninety-day period now part of the statute is not great enough to distinguish the present

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statute from that considered by the Justices in 1975. While we acknowledge that such an opinion is not binding precedent, after examining the question anew we see no reason to depart from the views there expressed. Langone v. Secretary of the Commonwealth, 388 Mass. 185, 191, appeal dismissed, 460 U.S. 1057 (1983).

The California provision upheld in Storer was more restrictive than the Massachusetts twenty-eight-day (now ninety-day) restriction. The plaintiffs would distinguish Storer from their case, finding differences in the interests asserted by the challengers of the California law. In particular, the plaintiffs assert that the State's interests were weighed against the independent candidates' rights to seek elective office in Storer, not against the right to vote, of which Metros claims she was deprived.

Metros fails to convince us of the distinction. She was not deprived of her opportunity to vote in the Democratic party primary election, and in fact voted as a Democrat in that election. She was denied a place on the ballot as an unaffiliated candidate because she had been affiliated with a party within the prohibited time period clearly set forth in the statute. Two of the plaintiffs in Storer had been registered Democrats who were statutorily disqualified from ballot status as independent candidates because of their party affiliation within the time period set forth in the California statute. There is no significant distinction. Metros's claim of infringement of her rights of association and equal protection have been disposed of by the opinion of the United States Supreme Court in Storer to the extent that her arguments are based on the Federal Constitution. While we have left open the question whether arts. 1, 9, and 16 of the Massachusetts Declaration of Rights may provide a different standard than the First and Fourteenth Amendments to the Federal Constitution, Bachrach v. Secretary of the Commonwealth, 382 Mass. 268, 273-274 n.12 (1981), the plaintiffs advance "no separate reasons, and we are unaware of any, to conclude that the Massachusetts Constitution affords them protection not provided by the First and Fourteenth Amendments of the United States Constitution." Langone v. Secretary of the Commonwealth, supra at 199.

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4. The closed primary. Metros frames her arguments so as to assert her right as an unaffiliated voter to vote in the Democratic party primary election. Though she publicly and formally enrolled as a member of the Democratic party, she seeks to minimize the significance of her acts. Her real objection seems to be to the "closed" primary held in Massachusetts. [Note 9] "This right [to vote in primary elections]," she claims, "is burdened by the requirement that a qualified citizen must publicly declare her membership in a political party before being granted access to the primary franchise."

A closed primary protects the rights of association of the members of the political party. See Note, Primary Elections and the Collective Right of Freedom of Association, 94 Yale L.J. 117 (1984). The Supreme Court of the United States has held that closed party primaries do not violate the constitutional rights of otherwise eligible voters not members of the party. Rodriguez v. Popular Democratic Party, 457 U.S. 1, 14 (1982) (no violation of rights of association or equal protection in procedure to fill vacant seat in Puerto Rico House of Representatives by primary election open only to members of deceased legislator's party). See Nader v. Schaffer, 417 F. Supp. 837,

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847 (D. Conn.) (three-judge court) (State may legitimately condition participation in party nominating process on showing of loyalty to the party), aff'd mem. 429 U.S. 989 (1976). Metros has been denied no protected right.

5. Summary. Metros chose to join the Democratic party. A benefit of that choice was her opportunity to participate in the nominating process of the party. A burden of that choice was her disqualification from seeking office as a candidate unaffiliated with that party. As noted by the judge of the Superior Court, "she wants the benefits of being an independent and a Democrat at the same time." This she cannot have. The appeal from the order of the single justice of the Appeals Court is to be dismissed. The judgment of dismissal is vacated, and a judgment declaring the rights of the parties is to be entered. See Cherkes v. Westport, 393 Mass. 9, 12 (1984); Gorman v. New Bedford, 383 Mass. 57, 62 (1981). The matter is remanded to the Superior Court for entry of a judgment declaring the rights of the parties in a manner consistent with this opinion.

So ordered.