text:
    MOORE v. ARIZONA
    No. 73-5002.
    Decided November 5, 1973
   Per Curiam.

Almost three years after he was charged and 28 months after he first demanded that Arizona either extradite him from California, where he was serving a prison term, or drop a detainer against him, petitioner was tried for murder in Arizona. Prior to trial, he filed a state habeas corpus application, alleging a deprivation of his Sixth and Fourteenth Amendment right to a speedy trial. In affirming the denial of the petition, the Arizona Supreme Court ruled that under this Court’s decisions in Dickey v. Florida, 398 U. S. 30 (1970), and Barker v. Wingo, 407 U. S. 514 (1972), a showing of prejudice to the defense at trial was essential to establish a federal speedy trial claim. The state court found no such prejudice here because petitioner was afforded a preliminary hearing and allowed to subpoena witnesses. 109 Ariz. 111, 506 P. 2d 242 (1973).

The state court was in fundamental error in its reading of Barker v. Wingo and in the standard applied in judging petitioner’s speedy trial claim. Barker v. Wingo expressly rejected the notion that an affirmative demonstration of prejudice was necessary to prove a denial of the constitutional right to a speedy trial:

“We regard none of the four factors identified above [length of delay, reason for delay, defendant’s assertion of his right, and prejudice to the defendant] as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused’s interest in a speedy trial is specifically affirmed in the Constitution.” 407 U. S., at 533 (footnote omitted).

In addition to possible prejudice, any court must thus carefully weigh the reasons for the delay in bringing an incarcerated defendant to trial. In the face of petitioner’s repeated demands, did the State discharge its “constitutional duty to make a diligent, good-faith effort to bring him [to trial]”? Smith v. Hooey, 393 U. S. 374, 383 (1969).

Moreover, prejudice to a defendant caused by delay in bringing him to trial is not confined to the possible prejudice to his defense in those proceedings. Inordinate delay,

“wholly aside from possible prejudice to a defense on the merits, may 'seriously interfere with the defendant’s liberty, whether he is free on bail or not, and . . . may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.’ United States v. Marion, 404 U. S. 307, 320 (1971). These factors are more serious for some than for others, but they are inevitably present in every case to some extent, for every defendant will either be incarcerated pending trial or on bail subject to substantial restrictions on his liberty.” Barker v. Wingo, supra, at 537 (White, J., concurring).

See also id., at 532-533 (majority opinion). Some of these factors may carry quite different weight where a defendant is incarcerated after conviction in another State, but no court should overlook the possible impact pending charges might have on his prospects for parole and meaningful rehabilitation. Strunk v. United States, 412 U. S. 434, 439 (1973).

The State of Arizona itself has conceded that this is a close case under Barker v. Wingo and that it is arguable whether the three-year delay was excusable. Because we agree and because “the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment,” Klopfer v. North Carolina, 386 U. S. 213, 223 (1967), we grant the motion for leave to proceed in forma pauperis and the petition, vacate the judgment, and remand to the Arizona Supreme Court to reassess petitioner's case under the standards mandated by Smith, Barker, and Dickey.

So ordered.

       The court did not mention the unavailability of one of the two key witnesses as the result of her deportation 18 months after the charge had been filed against petitioner.

       The examples of possible trial prejudice recited in Barker bear directly on this case:
      “If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.” Barker v. Wingo, 407 U. S. 514, 532 (1972).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    BERRY v. CITY OF CINCINNATI
    No. 73-5245.
    Decided November 5, 1973
   Per Curiam.

Petitioner, who was serving a sentence for a misdemeanor offense when Argersinger v. Hamlin, 407 U. S. 25 (1972), was decided, sought relief in the state courts claiming that because Argersinger should be accorded retroactive effect and because his trial and sentencing were uncounseled, his conviction should be invalidated. The Supreme Court of Ohio refused to apply Argersinger to convictions occurring prior to that decision. City of Cincinnati v. Berry, 34 Ohio St. 2d 106, 296 N. E. 2d 532 (1973). Petitioner was enlarged on bail pending action on his claim and faces reincarceration should the judgment of the Ohio courts remain undisturbed. The motion to proceed in forma pauperis and the petition for certiorari are granted, and the judgment of the Ohio Supreme Court is reversed. Those convicted prior to the decision in Argersinger are entitled to the constitutional rule enunciated in that case, Kitchens v. Smith, 401 U. S. 847 (1971); Williams v. United States, 401 U. S. 646, 653 and n. 6 (1971) (opinion of White, J.); Burgett v. Texas, 389 U. S. 109, 114 (1967); cf. Adams v. Illinois, 405 U. S. 278 (1972), if they allege and prove a bona fide, existing case or controversy sufficient to invoke the jurisdiction of a federal court. Sibron v. New York, 392 U. S. 40, 50-58 (1968); Carafas v. LaVallee, 391 U. S. 234, 237-238 (1968); Ginsberg v. New York, 390 U. S. 629, 633-634, n. 2 (1968).

So ordered.


author: Per Curiam. Mr. Justice Douglas,

text:
    MUSSER v. UNITED STATES
    No. 72-1733.
    Decided November 12, 1973.

      Together with No. 72-6748, Waldron v. United States, on petition for writ of certiorari to the United States Court of Appeals for the Seventh Circuit.

   Per Curiam.

The petitioners in these cases were each convicted for refusing to submit to induction into the Armed Forces, 50 U. S. C. App. § 462 (a), and each seeks review of the judgment affirming his conviction upon the sole ground that the order to report for induction was invalid for failure of the local board to reopen his classification pursuant to a request for a conscientious objector classification, see Mulloy v. United States, 398 U. S. 410, 418 (1970).

In No. 72-1733, the petitioner Musser received an order to report for induction, issued by his local board on September 15, 1970. On September 21, 1970, he requested and received Selective Service System Form 150, a special form for those seeking conscientious objector classification. Musser filled out the form, indicating in response to the questions posed that he was conscientiously opposed to participation in war in any form by reason of his religious training and belief, and claiming exemption from combatant and noncombatant training and service pursuant to 50 U. S. C. App. § 456 (j). On September 29, 1970, the local board reviewed Musser’s application. The minutes of that meeting indicate that in the opinion of the members of the board, his claim “lack[ed] sincerity” and that he “ [had to] report for induction.” On the same day he was sent a form letter stating that his application had been received and reviewed, that he was “hereby advised [that the board] did not specifically find there has been a change in status resulting from circumstances over which you had no control,” and that pursuant to Selective Service Regulation 1625.2, 32 CFR § 1625.2, his classification would therefore not be reopened. Musser was subsequently advised by the board of his continuing duty to report and was in fact ordered to report for induction on January 19, 1971. On that date he appeared at the induction center but refused to submit to induction. For this refusal he was convicted in a jury-waived trial and sentenced to two years’ imprisonment. The Court of Appeals affirmed, 478 F. 2d 1068 (CA9 1973).

In No. 72-6748, the petitioner Waldron was, on December 30, 1968, mailed an order to report for induction on February 5, 1969. Shortly thereafter, he requested, received, and completed an SSS Form 150, indicating his opposition to war in any form and requesting a conscientious objector classification. On January 24, 1969, the board notified him that it had reviewed his application but “found no grounds for reopening your classification.” Subsequently, on January 28, 1969, the State Director of Selective Service reviewed Waldron’s file and recommended to the local board that his induction be postponed pursuant to Regulation 1632.2, 32 CFR § 1632.2, and that he be given a “courtesy interview” pursuant to then-current Local Board Memorandum 41. Waldron was thereupon sent a letter indicating that his induction was being postponed until February 19, 1969, and that he would be granted an interview on February 5, 1969. On February 6, following the interview, he was notified that the board found “no grounds for reopening your classification after you[r] being interviewed” and that he had to report for induction on February 19. He arranged further to postpone the date of his induction until March 27, 1969, in order to be able to report for induction in another city where he was then living, and on that date he refused to submit to induction. He was thereafter tried and convicted of refusing to submit to a valid order to report for induction, and the Court of Appeals affirmed, 474 F. 2d 90 (CA7 1973).

In Ehlert v. United States, 402 U. S. 99 (1971), this Court reviewed a claim that a local Selective Service board, operating under laws and regulations substantially the same as those involved here, must reopen a registrant’s classification following a claim for conscientious objector status made after issuance of an order to report for induction and based on an assertion that the registrant’s conscientious objection to war in any form had "crystallized” after the issuance of the order to report. The Court reasoned that "[a] regulation explicitly providing that no conscientious objector claim could be considered by a local board unless filed before the mailing of an induction notice would ... be perfectly valid” as a reasonable timeliness rule to insure that all possible claims be presented to and reviewed by the local board prior to its' determination that a given registrant is subject to induction. Id., at 101-102. The Court also concluded, however, that “those whose views are late in crystallizing” cannot “be deprived of a full and fair opportunity to present the merits of their conscientious objector claims for consideration under the same substantive criteria” that govern claims based on views crystallizing prior to issuance of induction notices. Id., at 103. Such a full and fair opportunity, the Court found, existed in in-service Armed Services procedures for hearing and evaluating conscientious objector claims. Under such a system, the “intolerable” situation of a “no man’s land” in which post-notice claims for CO classification were not heard by the local boards because of their timeliness rules, and were not heard by the Army after induction because of a finding that an inductee had waived his right to claim such classification, was avoided: claims crystallizing prior to issuance of an order to report must be directed to and are to be reviewed by local boards, while claims crystallizing thereafter are to be reviewed only by the Armed Forces after induction. Id., at 104 n. 7.

Selective Service regulations, however, did not unambiguously create such a system, but left open the possibility that a classification be reopened after issuance of a notice to report if the local board “specifically finds there has been a change in the registrant’s status resulting from circumstances over which the registrant had no control.” 32 CFR § 1625.2. Prior to Ehlert, the courts of appeals had divided on the question of whether late crystallization of conscientious objector views qualified as such a change. 402 U. S., at 101 n. 3. In Ehlert, we avoided the “theological” argument of whether, as a matter of law, a claim of late-crystallizing conscientious objection was a change over which “the registrant has no control.” Rather, we held that in view of consistent administrative interpretation by the Government that changes envisaged by Regulation 1625.2 were limited to “objectively identifiable” and “extraneous” circumstances, such an interpretation of the regulation would be adopted. Id., at 105.

Finally, we considered in Ehlert whether “the conditions for the validity of such a rule ... are met in practice.” After reviewing Army regulations, Department of Defense Directives, and a letter from the General Counsel of the Department of the Army, we determined that an inductee claiming late-crystallizing conscientious objector status would receive a full and fair opportunity to have his claim heard by Armed Forces personnel. Id., at 106-107.

The petitioners in these cases make overlapping arguments in attempting to avoid the Ehlert precedent. First, relying on decisions and opinions of the First and Third Circuits, they contend that the refusals of the local boards to reopen their classifications could be read as a “denial” of those claims and thus a bar to in-service review. In particular, they point to ¶ 3.b (2) of Army Regulation 635-20, not cited or discussed in the Ehlert opinion, which states that in-service claims for conscientious objector treatment will not be favorably considered when “[b]ased solely on conscientious objection claimed and denied by the Selective Service System prior to induction.” (Emphasis added.) In the language of the First Circuit, “if the Army could have read the draft board’s reasonless refusal to reopen as a ‘denial’ then [a registrant] might well have been placed in a mutual buck-passing situation where neither the draft board nor the Army would consider his claim on the merits.” United States v. Alioto, 469 F. 2d 722, 727 (1972). Ehlert, the petitioners claim, did not deal with this problem because the board in that case had explicitly stated that it was not denying Ehlert’s claim on the merits, but was refusing to reach those merits since no showing had been made of a “ ‘change in the registrant’s status resulting from circumstances over which the registrant had no control.’ ” 402 U. S., at 100. Thus, they argue, the ambiguity of the board’s refusal to reopen, taken together with current Army regulations, raises the specter of the kind of no man’s land specifically found intolerable in Ehlert.

The petitioners misconstrue the reasoning and effect of our holding in Ehlert. In adopting the Government’s interpretation of Regulation 1625.2 that a late crystallization was not a circumstance over which a registrant ‘'had no control,” the Court did not hold merely that a local board would be permitted to refuse reopening of a classification in such a situation, but that it was without power to reopen under such circumstances. The mandatory language of Regulation 1625.2, that classification “shall not be reopened” unless the proviso is met, requires no less. If a local board is not empowered to reopen the classification, it follows that it is similarly without power to make any ruling on the merits of a registrant’s claims, since such a ruling on the merits of a claim can be made only by a reopening, with concomitant rights in the registrant to a personal appearance and an administrative appeal of an adverse decision, see n. 2, supra. From this it follows that in no event can a mere refusal to reopen signify more than a recognition of lack of power to do so ; it cannot and does not bear any significance as to the merits of a registrant’s claim.

The petitioners further argue that while each board’s action in these cases took the form of a refusal to reopen, the decision not to do so was in fact based on the board’s consideration of the merits, and could be viewed as such by the Armed Forces. The simple answer to this contention is that no matter what the boards’ apparent motivations in refusing to reopen the petitioners’ classifications may have been, the boards were simply without power to reopen, and an expressed or unexpressed indication of the boards’ views of the claims cannot be deemed a denial of those claims on the merits.

As in Ehlert, we turn finally to a consideration of whether “the conditions for the validity of such a rule ... are met in practice.” Army Regulation 635-20, ¶ 3.b (2), supra, bars in-service review of a request for conscientious objector status if such a request has been “claimed and denied by the Selective Service System prior to induction.” While the critical word “denied” might arguably be applied to a board's refusal to reopen a classification, it cannot be so applied to a refusal to reopen a classification based on a claim of conscientious objection crystallizing after issuance of a notice to report, now that Ehlert has made clear that such a refusal can only be based.on the board’s lack of power to reopen in such a posture. We note that in a letter written by the General Counsel for the Department of the Army with respect to the then-pending case of United States v. Shomock and printed in the opinion of that case, 462 F. 2d 338, 345 n. 17 (CA3 1972), the General Counsel indicated that when a refusal to reopen is not based on a decision on the merits, a registrant may raise such a claim in the Army and will be given a full and fair hearing. In the event that a local board in one way or another manifests its views as to the sincerity of a registrant’s late-crystallizing claims, as in the case of the petitioner Musser, or expresses any other conclusion concerning the merits of his claims, such expressions must be given no effect by the Armed Forces in reviewing an in-service conscientious objector request.

It follows that the Courts of Appeals in these cases correctly ruled that the petitioners’ orders to report for induction were valid. The motion of the petitioner Waldron for leave to proceed in forma pauperis and the petitions for certiorari are granted, and the judgments are

Affirmed.

Mr. Justice Brennan and Mr. Justice Marshall would grant these petitions and set these cases for oral argument.

Mr. Justice Douglas,

dissenting.

In Ehlert v. United States, 402 U. S. 99 (1971), the Court decided that the Selective Service System may place special hurdles on conscientious objector claims first raised after a notice of induction has been issued. In allowing the Selective Service to set what it termed reasonable “timeliness” regulations, the Court assumed that the conscientious objector claims not considered by the local board would receive full consideration by the military after induction. Id., at 107. “[I]f . . . a situation should arise in which neither the local board nor the military had made available a full opportunity to present a prima facie conscientious objection claim for determination under established criteria, ... a wholly different case would be presented.” Ibid. I dissented in Ehlert, arguing that under the regulations of the Selective Service System the local boards should consider the claim as arising from a circumstance over which the registrant has no control, and that civilian rather than military adjudication of these claims should be preferred. Id., at 108. But apart from my own views on that question, the decisions affirmed in today’s per curiam are highly questionable, since they appear to be that “wholly different case.”

in these cases received a full administrative review of the conscientious objector claims presented to his local board. But in each case the board purported to look into the claim. In Musser’s case the board made an explicit finding that his beliefs were not “sincere” — a finding which one judge below found to be without basis. In Waldron’s case no explicit finding on the merits was made, yet the board postponed his induction and interviewed him after the State Director recommended this course following his review of Waldron’s file. Waldron’s claim was not specifically denied as untimely. Thus in each case it would appear that either explicitly or implicitly some evaluation of the merits of the CO claim was made. But because the claims were considered late, neither petitioner was afforded the normal administrative appeal rights. Such result can be justified under Ehlert only if these claims are to receive full de novo consideration by the military. challenging assurances that their claims will receive such consideration, the petitioners point to ¶[ 3.b (2) Army Regulation 635-20, which was not considered Ehlert. It provides that “[rjequests for discharge after entering military service will not be favorably considered when . . . (2) [b]ased solely on conscientious objection claimed and denied by the Selective Service System prior to induction.”

The issue, then, is local boards may constitute, in the Army’s view, denial of the CO claim, thus barring its consideration by the Army. On its face the regulation would surely allow this construction. Such a possibility could perhaps have been avoided if the local boards in these cases had explicitly based their actions on the claims’ being untimely, as the Board in Ehlert did. But the boards here did not do this, and indeed in Musser’s case purported rather clearly to reject the claim on the merits. These cases are thus different from the petitioner’s in Ehlert. With the local board’s actions here at best ambiguous, we cannot know that the Army will consider the claims.

The majority emphasizes these cases the local boards were without authority to reopen the classifications and consider the claims on the merits. That is, of course, now the law. But while this rule effectively forecloses registrants from the procedural rights within the Selective Service System that a reopening would afford, it cannot guarantee that the Army will afford the registrant a full hearing on his claims. That will depend upon the Army’s application of its own regulations to these facts.

Indeed, even if we assume that the Army will superficially grant petitioners’ claims de novo consideration, we in fact have no way of discovering whether sub silentio some weight will be accorded the prior proceedings of the draft boards. Yet those proceedings are deserving of no weight whatsoever since petitioners were foreclosed from the administrative appeal ordinarily allowed.

The opinions summarily affirmed today conflict squarely, as the Solicitor General concedes, with decisions in the First, Second, and Third Circuits. United States v. Alioto, 469 F. 2d 722 (CA1 1972); United States v. Jerrold, 480 F. 2d 1293 (CA1 1973); United States v. Cotton, 346 F. Supp. 691 (SDNY 1972); United States v. Usdin, 6 S. S. L. R. 3039 (EDNY 1972); United States v. Shomock, 462 F. 2d 338 (CA3 1972); United States v. Ziskowski, 465 F. 2d 480 (CA3 1972); United States v. Folino, No. 72-1974, CA3 June 29, 1973. At a minimum we should have set these cases for argument and full briefing.

       At the time the administrative decisions involved in these cases were made, Regulation 1625.2 read in pertinent part as follows:
      “The local board may reopen and consider anew the classification of a registrant . . . upon the written request of the registrant . . . if such request is accompanied by written information presenting facts not considered when the registrant was classified, which, if true, would justify a change in the registrant’s classification; . . . provided . . . the classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction (SSS Form No. 252) or an Order to Report for Civilian Work and Statement of Employer (SSS Form No. 153) unless the local board first specifically finds there has been a change in the registrant’s status resulting from circumstances over which the registrant had no control.”

       As used in the Selective Service Regulations and in this opinion, the term “reopen” signifies a fresh determination by the local board of the classification to which a registrant belongs. See Regulation 1625.11, 32 CFR § 1625.11. When a case is reopened by a local board, the registrant is automatically accorded the right to a personal appearance before the local board and an administrative appeal of any adverse decision by the board, Regulation 1625.13, 32 CFR § 1625.13, even though a registrant is “reclassified” in the same classification as that in which he had formerly been put. Mulloy v. United States, 398 U. S. 410, 414-415 (1970).

       As examples of the sort of nonvolitional changes that Regulation 1625.2 was intended to allow, the Government has consistently cited, and the Court in Ehlert mentioned, an injury to the registrant or death in his family making him the sole surviving son. 402 U. S., at 104.

        United States v. Alioto, 469 F. 2d 722 (CA1 1972); United States v. Ziskowski, 465 F. 2d 480 (CA3 1972); United States v. Shomock, 462 F. 2d 338 (CA3 1972). See also United States v. Cotton, 346 F. Supp. 691 (SDNY 1972); United States v. Usdin, 6 S. S. L. R. 3039 (EDNY 1972).

       Although the language of Regulation 1625.2 is permissive in stating that a local board "may” reopen if the prerequisites are met, in Mulloy v. United States, supra, we held that a board must reopen a classification if a prima facie case for a new classification has been made to the board and the timeliness requirements are met. 398 U. S., at 415-416.

       The petitioners in both of the present cases, relying primarily on Miller v. United States, 388 F. 2d 973 (CA9 1967), contend that by considering the merits of the claims for conscientious objector status the boards effected a “de facto reopening” which was merely clothed as a denial of reopening. In Miller and in the subsequent case of United States v. Aufdenspring, 439 F. 2d 388 (CA9 1971), the State Director, acting under since-rescinded Regulation 1625.3, independently ordered a reopening of the registrants’ cases, thus circumventing the timeliness proviso contained in Regulation 1625.2 with respect to requests for reopening by registrants. The courts in those cases held that the local boards’ refusals to reopen were procedurally impermissible, since in each case the refusal was based on a review of the substance of the registrant’s claim and thus was in fact a refusal to reclassify without the procedural advantages to the registrant inherent in a reclassification, see n. 2, supra.

      Those decisions were correctly distinguished by the Courts of Appeals in the present eases. Petitioner Musser’s claim for a reopening and reclassification was based solely upon his own request, and thus the timeliness proviso of Regulation 1625.2 fully applied. In Waldron’s case, the State Director recommended postponement and an interview in accordance with Local Board Memorandum 41. But the court found that this postponement was effected under the Director’s authority given by Regulation 1632.2 to postpone any induction, rather than in the exercise of his authority under Regulation 1625.3 to cause a reopening; further, the court noted that the Director’s suggestion of an interview could not in any event trigger a reopening under Regulation 1625.3 since the communication was not in writing, as that Regulation specifically required.

       The pertinent part of the General Counsel’s letter is as follows:
      entered the Army in May 1969 under circumstances where the Selective Service System actually considered and denied his conscientious objector claim on the merits, he would not have been entitled to an in-service determination on the merits of his conscientious objector claim.
      appellant had entered the Army in May 1969 under circumstances where his local draft board merely refused to reopen his classification because his asserted-views crystallized subsequent to the receipt of his induction notice, in the view of the Department of the Army personnel responsible for administering the conscientious objector claims of in-service members, he would have been entitled under Army policy to an in-service determination on the merits of his conscientious objector claim.” 462 F. 2d, at 345. (Emphasis added.)
      Although the letter interpreted and reported policies in effect at the time of Shomock’s ordered induction, there appears to have been no significant change of policy at the time of the ordered inductions in these cases.

       If the board reopens the file, the registrant has the right after an adverse decision to a personal appearance before the board and appeal. Since here the files were not considered reopened, the petitioners had no such rights. Compare 32 CFR § 1625.4 with 32 CFR § 1625.13.

       Unlike Ehlert, in these cases we have no assurances from the Army that the registrants will receive a hearing. The majority refers to a letter from the Army’s General Counsel lodged with the Court of Appeals in United States v. Shomock, 462 F. 2d 338, 345 n. 17 (CA3 1972). But this letter does no more than distinguish between claims denied by the Selective Service System on the merits and those not considered because the board did not reopen the classification; only the latter will receive a hearing in the Army. But there is no assurance that in the confused circumstances of these cases the Army will not consider these claims to have been denied on the merits.


author: Mr. Justice Douglas Mr. Justice White,

text:
    DEPARTMENT OF GAME OF WASHINGTON v. PUYALLUP TRIBE et al.
    No. 72-481.
    Argued October 10, 1973
    Decided November 19, 1973

    Douglas, J., delivered the opinion for a unanimous Court. White, J., filed a concurring opinion, in which BuRGer, C. J., and Stewart, J., joined, post, p. 49.

      Joseph L. Coniff, Jr., Assistant Attorney General of Washington, argued the cause for petitioner in No. 72-481 and for respondent in No. 72-746. With him on the brief was Slade Gorton, Attorney General.

      Harry B. Sachse argued the cause for respondents in No. 72-481 and for petitioner in No. 72-746. With him on the brief were Solicitor General Griswold, Assistant Attorney General Johnson, Deputy Solicitor General Wallace, Edmund B. Clark, and Glen B. Goodsell:

      Together with No. 72-746, Puyallup Tribe v. Department of Game of Washington, also on certiorari to the same court.

        Charles A. Hobbs filed a brief for the National Congress of American Indians, Inc., et al. as amici curiae urging reversal in No. 72-746. Briefs of amici curiae in both cases were filed by James B. Hovis for the Confederated Bands and Tribes of the Yakima Indian Nation, and by David H. Getches for Ramona C. Bennett et al.

   Mr. Justice Douglas

delivered the opinion of the Court.

In 1963 the Department of Game and the Department of Fisheries of the State of Washington brought this action against the Puyallup Tribe and some of its members, claiming they were subject to the State’s laws that prohibited net fishing at their usual and accustomed places and seeking to enjoin them from violating the State’s fishing regulations. The Supreme Court of the State held that the tribe had protected fishing rights under the Treaty of Medicine Creek and that a member who was fishing at a usual and accustomed fishing place of the tribe may not be restrained or enjoined from doing so unless he is violating a state statute or regulation “which has been established to be reasonable and necessary for the conservation of the fishery.” 70 Wash. 2d 245, 262, 422 P. 2d 754, 764.

On review of that decision we held that, as provided in the Treaty of Medicine Creek, the “ Tight of taking fish, at all usual and accustomed grounds and stations [which] is . . . secured to said Indians, in common with all citizens of the Territory’ ” extends to off-reservation fishing but that “the manner of fishing, the size of the take, the restriction of commercial fishing, and the like may be regulated by the State in the interest of conservation, provided the regulation meets appropriate standards and does not discriminate against the Indians.” 391 U. S. 392, 395, 398. We found the state court decision had not clearly resolved the question whether barring the “use of set nets in fresh water streams or at their mouths” by all, including Indians, and allowing fishing only by hook and line in these areas was a reasonable and necessary conservation measure. The case was remanded for determination of that question and also “the issue of equal protection implicit in the phrase fin common with’ ” as used in the Treaty. Id., at 400, 403.

In Washington the Department of Fisheries deals with salmon fishing, while steelhead trout are under the jurisdiction of the Department of Game. On our remand the Department of Fisheries changed its regulation to allow Indian net fishing for salmon in the Puyallup River (but not in the bay or in the spawning areas of the river). The Department of Game, however, continued its total prohibition of net fishing for steelhead trout. The Supreme Court of Washington upheld the regulations imposed by the Department of Fisheries which, as noted, were applicable to salmon; and no party has brought that ruling back here for review. The sole question tendered in the present cases concerns the regulations of the Department of Game concerning steelhead trout. We granted the petitions for certiorari. 410 U. S. 981.

The Supreme Court of Washington, while upholding the regulations of the Department of Game prohibiting fishing by net for steelhead in 1970, 80 Wash. 2d 561, 497 P. 2d 171, held (1) that new fishing regulations for the Tribe must be made each year, supported by “facts and data that show the regulation is necessary for the conservation” of the steelhead, id., at 576, 497 P. 2d, at 180; (2) that the prohibition of net fishing for steelhead was proper because “the catch of the steelhead sports fishery alone in the Puyallup River leaves no more than a sufficient number of steelhead for escapement necessary for the conservation of the steelhead fishery in that river.” Id., at 573, 497 P. 2d, at 178-179.

The ban on all net fishing in the Puyallup River for steelhead grants, in effect, the entire run to the sports fishermen. Whether that amounts to discrimination under the Treaty is the central question in these cases.

We know from the record and oral argument that the present run of steelhead trout is made possible by the planting of young steelhead trout called smolt and that the planting program is financed in large part by the license fees paid by the sports fishermen. The Washington Supreme Court said:

“Mr. Clifford J. Millenbac [h], Chief of the Fisheries Management Division of the Department of Game, testified that the run of steelhead in the Puyallup River drainage is between 16,000 and 18,000 fish annually; that approximately 5,000 to 6,000 are native run which is the maximum the Puyallup system will produce even if undisturbed; that approximately 10,000 are produced by the annual hatchery plant of 100,000 smolt; that smolt, small steelhead from 6 to 9 inches in length, are released in April, and make their way to the sea about the first of August; that during this time all fishing is closed to permit their escapement; that the entire cost of the hatchery smolt plant, exclusive of some federal funds, is financed from license fees paid by sports fishermen. The record further shows that 61 per cent of the entire sports catch on the river is from hatchery-planted steelhead; that the catch of steelhead by the sports fishery, as determined from ‘card count' received from the licensed sports fishermen, is around 12,000 to 14,000 annually; that the escapement required for adequate hatchery needs and spawning is 25 per cent to 50 per cent of the run; that the steelhead fishery cannot therefore withstand a commercial fishery on the Puyallup River.” Id., at 572, 497 P. 2d, at 178.

At oral argument counsel for the Department of Game represented that the catch of steelhead that were developed from the hatchery program was in one year 60% of the total run and in another 80%. And he stated that approximately 80% of the cost of that program was financed by the license fees of sports fishermen. Whether that issue will emerge in this ongoing litigation as a basis for allocating the catch between the two groups, we do not know. We mention it only to reserve decision on it.

At issue presently is the problem of accommodating net fishing by the Puyallups with conservation needs of the river. Our prior decision recognized that net fishing by these Indians for commercial purposes was covered by the Treaty. 391 U. S., at 398-399. We said that “the manner of fishing, the size of the take, the restriction of commercial fishing, and the like may be regulated by the State in the interest of conservation, provided the regulation . . . does not discriminate against the Indians.” Id., at 398. There is discrimination here because all Indian net fishing is barred and only hook-and-line fishing entirely pre-empted by non-Indians, is allowed.

Only an expert could fairly estimate what degree of net fishing plus fishing by hook and line would allow the escapement of fish necessary for perpetuation of the species. If hook-and-line fishermen now catch all the steel-head which can be caught within the limits needed for escapement, then that number must in some manner be fairly apportioned between Indian net fishing and non-Indian sports fishing so far as that particular species is concerned. What formula should be employed is not for us to propose. There are many variables — the number of nets, the number of steelhead that can be caught with nets, the places where nets can be located, the length of the net season, the frequency during the season when nets may be used. On the other side are the number of hook- and-line licenses that are issuable, the limits of the catch of each sports fisherman, the duration of the season for sports fishing, and the like.

The aim is to accommodate the rights of Indians under the Treaty and the rights of other people.

We do not imply that these fishing rights persist down to the very last steelhead in the river. Rights can be controlled by the need to conserve a species; and the time may come when the life of a steelhead is so precarious in a particular stream that all fishing should be banned until the species regains assurance of survival. The police power of the State is adequate to prevent the steelhead from following the fate of the passenger pigeon; and the Treaty does not give the Indians a federal right to pursue the last living steelhead until it enters their nets.

We reverse the judgment below insofar as it treats the steelhead problem and remand the cases for proceedings not inconsistent with this opinion.

So ordered.

Mr. Justice White,

with whom The Chief Justice and Mr. Justice Stewart join, concurring.

I agree that, consistently with the Treaty, commercial fishing by Indians cannot be totally forbidden in order to permit sports fishing in the usual volume. On the other hand, the Treaty does not obligate the State of Washington to subsidize the Indian fishery with planted fish paid for by sports fishermen. The opinion below, as I understand it, indicates that the river, left to its own devices, would have an annual run of 5,000 or 6,000 steel-head. It is only to this run that Indian Treaty rights extend. Moreover, if there were no sports fishing and no state-planted steelhead, and if the State, as the Court said it could when this case was here before, may restrict commercial fishing in the interest of conservation, the Indian fishery cannot take so many fish that the natural run would suffer progressive depletion. Because the Court’s opinion appears to leave room for this approach and for substantial, but fair, limits on the Indian commercial fishery, I am content to concur.

       “ANNUAL CATCH LIMIT—STEELHEAD ONLY: Thirty steelhead over 20" in length . . . .” 1970 Game Fish Seasons and Catch Limits 3 (Dept. of Game). (Cited at 80 Wash. 2d 561, 572, 497 P. 2d 171, 178.)

       The Washington Supreme Court noted “that substantially all the steelhead fishery occurs after their entrance into the respective rivers to which they return.” 80 Wash. 2d, at 575, 497 P. 2d, at 180.


author: Mr. Justice Stewart Mr. Justice Blackmun, Mr. Justice Rehnquist,

text:
    KUSPER et al. v. PONTIKES
    No. 71-1631.
    Argued October 9, 1973
    Decided November 19, 1973
    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.

      Aldus S. Mitchell argued the cause for appellants. With him on the briefs were William R. Ming, Jr., and Sophia H. Hall.

      Ray Jeffrey Cohen argued the cause and filed a brief for appellee.
   Mr. Justice Stewart

delivered the opinion of the Court.

Under § 7-43 (d) of the Illinois Election Code, a person is prohibited 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. Appellee, Harriet G. Pontikes, is a qualified Chicago voter who voted in a Republican primary in February 1971; she wanted to vote in a March 1972 Democratic primary, but was barred from doing so by this 23-month rule. She filed a complaint for declaratory and in-junctive relief in the United States District Court for the Northern District of Illinois, alleging that § 7-43 (d) unconstitutionally abridged her freedom to associate with the political party of her choice by depriving her of the opportunity to vote in the Democratic primary. A statutory three-judge court was convened, and held, one judge dissenting, that the 23-month rule is unconstitutional. 345 F. Supp. 1104. We noted probable jurisdiction of this appeal from that judgment. 411 U. S. 915.

I

At the outset, we are met by the appellants’ argument that the District Court should have abstained from adjudicating the constitutionality of the 23-month rule. They base this argument upon that portion of § 7-43 (d) which provides that:

“ [Participation by a primary elector in a primary of a political party which, under the provisions of Section 7-2 of this Article, is a political party within a city, village or incorporated town or town only and entitled hereunder to make nominations of candidates for city, village or incorporated town or town offices only, and for no other office or offices, shall not disqualify such primary elector from participating in other primaries of his party . . . Ill. Rev. Stat., c. 46, § 7-43 (d).

The appellants note that the February 1971 Republican primary election in which Mrs. Pontikes voted involved only nominations for the offices of mayor, city clerk, and city treasurer of the city of Chicago. They claim that the state courts might interpret this 1971 primary to have been one of a “political party within a city . . . only,” and thus outside the purview of the 23-month rule.

As we stated in Lake Carriers’ Assn. v. MacMullan, 406 U. S. 498, 509:

“Abstention is a ‘judge-made doctrine . . . , first fashioned in 1941 in Railroad Commission v. Pullman Co., 312 U. S. 496, [that] sanctions . . . escape [from immediate decision] only in narrowly limited “special circumstances,” Propper v. Clark, 337 U. S. 472, 492,' Zwickler v. Koota, 389 U. S. 241, 248 (1967), justifying ‘the delay and expense to which application of the abstention doctrine inevitably gives rise.' England v. Medical Examiners, 375 U. S. 411, 418 (1964).”

The paradigm of the “special circumstances” that make abstention appropriate is a case where the challenged state statute is susceptible of a construction by the state judiciary that would avoid or modify the necessity of reaching a federal constitutional question. Zwickler v. Koota, 389 U. S. 241, 249; Harrison v. NAACP, 360 U. S. 167, 176-177. Abstention in such circumstances not only serves to minimize federal-state friction, but also avoids premature and perhaps unnecessary constitutional adjudication. Harman v. Forssenius, 380 U. S. 528, 534. But the doctrine of abstention “contemplates that deference to state court adjudication only be made where the issue of state law is uncertain.” Ibid. Where, on the other hand, it cannot be fairly concluded that the underlying state statute is susceptible of an interpretation that might avoid the necessity for constitutional adjudication, abstention would amount to shirking the solemn responsibility of the federal courts to “guard, enforce, and protect every right granted or secured by the Constitution of the United States,” Robb v. Connolly, 111 U. S. 624, 637.

We think that the Illinois statute involved in this case is not fairly susceptible of a reading that would avoid the necessity of constitutional adjudication. The appellants’ argument — that the February 1971 Chicago Republican primary might be considered that of a “political party within a city . . . only” — is foreclosed by the decision of the Illinois Supreme Court in Faherty v. Board of Election Comm’rs, 5 Ill. 2d 519, 126 N. E. 2d 235. That decision made it clear that the kind of “local” primaries that are outside the scope of § 7-43 (d) are simply those of “ 'purely city . . . political part[ies]’ ”— those parties entitled, under § 7-2 of the Illinois Election Code, to make nominations for city offices only. Id., at 524, 126 N. E. 2d, at 238.

Since both the Democratic and Republican parties are, of course, entitled in Illinois to make nominations not only for city offices, but for congressional, state, and county offices as well, the Faherty court held that they were not within the statutory definition of “city” parties. It follows then, that despite the fact that the February 1971 Republican primary in which the appellee voted involved only nominations for offices within the city of Chicago, Mrs. Pontikes was still clearly barred by the 23-month rule from voting in the March 1972 Democratic primary. The District Court was thus wholly justified in declining to abstain from deciding the constitutional validity of the 23-month rule, and it is to that issue that we now turn.

II

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. NAACP v. Button, 371 U. S. 415, 430; Bates v. Little Rock, 361 U. S. 516, 522-523; NAACP v. Alabama, 357 U. S. 449, 460-461. The right to associate with the political party of one’s choice is an integral part of this basic constitutional freedom. Williams v. Rhodes, 393 U. S. 23, 30. Cf. United States v. Robel, 389 U. S. 258.

To be sure, administration of the electoral process is a matter that the Constitution largely entrusts to the States. But, in exercising their powers of supervision over elections and in setting qualifications for voters, the States may not infringe upon basic constitutional protections. See, e. g., Dunn v. Blumstein, 405 U. S. 330; Kramer v. Union School District, 395 U. S. 621; Carrington v. Rash, 380 U. S. 89. As the Court made clear in Williams v. Rhodes, supra, unduly restrictive state election laws may so impinge upon freedom of association as to run afoul of the First and Fourteenth Amendments. 393 U. S., at 30. And see id., at 35—41 (Douglas, J., concurring); id., at 41-48 (Harlan, J., concurring).

There can be little doubt that § 7-43 (d) substantially restricts an Illinois voter’s freedom to change his political party affiliation. One who wishes to change his party registration must wait almost two years before his choice will be given effect. Moreover, he is forced to forgo participation in any primary elections occurring within the statutory 23-month hiatus. The effect of the Illinois statute is thus to “lock” the voter into his pre-existing party affiliation for a substantial period of time following participation in any primary election, and each succeeding primary vote extends this period of confinement.

The 23-month rule does not, of course, deprive those in the appellee’s position of all opportunities to associate with the political party of their choice. But neither did the state attempts to compel disclosure of NAACP membership lists in Bates v. Little Rock and NAACP v. Alabama work a total restriction upon the freedom of the organization’s members to associate with each other. Rather, the Court found in those cases that the statutes under attack constituted a “substantial restraint” and a “significant interference” with the exercise of the constitutionally protected right of free association.

The same is true of §7-43(d). While the Illinois statute did not absolutely preclude Mrs. Pontikes from associating with the Democratic party, it did absolutely preclude her from voting in that party’s 1972 primary election. Under our political system, a basic function of a political party is to select the candidates for public office to be offered to the voters at general elections. A prime objective of most voters in associating themselves with a particular party must surely be to gain a voice in that selection process. By preventing the appellee-from participating at all in Democratic primary elections during the statutory period, the Illinois statute deprived her of any voice in choosing the party’s candidates, and thus substantially abridged her ability to associate effectively with the party of her choice.

HH f-H J — H

As our past decisions have made clear, a significant encroachment upon associational freedom cannot be justified upon a mere showing of a legitimate state interest. Bates v. Little Rock, supra, at 524; NAACP v. Alabama, supra, at 463. For even when pursuing a legitimate interest, a State may not choose means that unnecessarily restrict constitutionally protected liberty. Dunn v. Blumstein, 405 U. S., at 343. “Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.” NAACP v. Button, 371 U. S., at 438. If the State has open to it a less drastic way of satisfying its legitimate interests, it may not choose a legislative scheme' that broadly stifles the exercise of fundamental personal liberties. Shelton v. Tucker, 364 U. S. 479, 488.

The appellants here urge that the 23-month rule serves, the purpose of preventing “raiding” — the practice whereby voters in sympathy with one party vote in another’s primary in order to distort that primary’s results. It is said that our decision in Rosario v. Rockefeller, 410 U. S. 752, recognized the state interest in inhibiting “raiding,” and upheld the constitutional validity of legislation restricting a voter’s freedom to change parties, enacted as a means of serving that interest.

It is true, of course, that the Court found no constitutional infirmity in the New York delayed-enrollment statute under review in Rosario. That law required a voter to enroll in the party of his choice at least 30 days before a general election in order to be eligible to vote in the next party primary, and thus prevented a change in party affiliation during the approximately 11 months between the deadline and the primary election. It is also true that the Court recognized in Rosario that a State may have a legitimate interest in seeking to curtail “raiding,” since that practice may affect the integrity of the electoral process. Id., at 761. But it does not follow from Rosario that the Illinois statutory procedures also pass muster under the Fourteenth Amendment, for the Illinois Election Code differs from the New York delayed-enrollment law in a number of important respects.

The New York statute at issue in Rosario did not prevent voters from participating in the party primary of their choice; it merely imposed a time limit on enrollment. Under the New York law, a person who wanted to vote in a different party primary every year was not precluded from doing so; he had only to meet the requirement of declaring his party allegiance 30 days before the preceding general election. The New York law did not have the consequence of “locking” a voter into an unwanted party affiliation from one election to the next; any such confinement was merely the result of the elector's voluntary failure to take timely measures to enroll. Id., at 757-759. The Court therefore concluded that the New York delayed-enrollment law did not prevent voters “from associating with the political party of their choice.” Id., at 762. And see id., at 758 and n. 8.

The basic difference in the Illinois law is obvious. Since the appellee here voted in the 1971 Republican primary, the state law absolutely precluded her from participating in the 1972 Democratic primary. Unlike the petitioners in Rosario, whose disenfranchisement was caused by their own failure to take timely measures to enroll, there was no action that Mrs. Pontikes could have taken to make herself eligible to vote in the 1972 Democratic primary. The Illinois law, unlike that of New York, thus “locks” voters into a pre-existing party affiliation from one primary to the next, and the only way to break the “lock” is to forgo voting in any primary for a period of almost two years.

In other words, while the Court held in Rosario that the New York delayed-enrollment scheme did not. prevent voters from exercising their constitutional freedom to associate with the political party of their choice, the Illinois 23-month rule clearly does just that. It follows that the legitimate interest of Illinois in preventing “raiding” cannot justify the device it has chosen to effect its goal. For that device conspicuously infringes upon basic constitutional liberty. Far from supporting the validity of the Illinois legislation, the Court’s decision in Rosario suggests that the asserted state interest can be attained by “less drastic means,” which do not unnecessarily burden the exercise of constitutionally protected activity.

We conclude, therefore, that § 7-43 (d) of the Illinois Election Code unconstitutionally infringes upon the right of free political association protected by the First and Fourteenth Amendments. The judgment of the District Court is accordingly

Affirmed.

The Chief Justice concurs in the result.

Mr. Justice Blackmun,

dissenting.

The deprivation Mrs. Pontikes claims to have suffered, and which the Court today enshrouds with the mantle of unconstitutionality, is that she has been restrained by the Illinois statute from voting in one primary election of one party in the relatively minor context of a personal desire to undo an established party affiliation. Apart from this meager restraint, appellee Pontikes is fully free to associate with the party of her varying choice. She is, and has been, completely free to vote as she chooses in any general election. And she was free to vote in the primary of the party with which she had affiliated and voted in the preceding primary.

It is important, I think — and deserving of repeated emphasis — to note that this very limited statutory restriction on the appellee’s exercise of her franchise is triggered solely by her personal and voluntary decision. This being so, the Court’s conclusion seems to me to dilute an important First Amendment concept the vitality of which, in the long run, necessarily will suffer from strained and artificial applications of this kind. The mere fact that a state statute lightly brushes upon the right to vote and the right of association, important as these are, should not automatically result in invalidation. Prior case law does not require a conclusion of invalidity' where, as here, the intrusion is so minor. See McDonald v. Board of Election Comm’rs, 394 U. S. 802 (1969); Rosario v. Rockefeller, 410 U. S. 752 (1973).

In nearly all the voting cases relied upon by the Court and by the appellee, the Court was faced with situations where the disqualification amounted to a direct disenfranchisement or a vote dilution suffered by a discrete class whose impediment, as so imposed, was the result of an involuntary condition not directly tied to the franchise. See, for example, Harper v. Virginia Board of Elections, 383 U. S. 663 (1966) (poll tax and wealth); Reynolds v. Sims, 377 U. S. 533 (1964) (location); Cipriano v. City of Houma, 395 U. S. 701 (1969) (property ownership); Carrington v. Rash, 380 U. S. 89 (1965) (military status). Cf. Dunn v. Blumstein, 405 U. S. 330 (1972) (residence). In each of these cases there was a direct impairment of the ability of the affected class, without voluntary action, to participate in the electoral process. The level of intrusion was markedly significant.

What is before us here is a fairly complex statutory structure designed by Illinois to protect the integrity of the ballot box and the party system. The interest asserted by the State is clearly a legitimate one. Rosario v. Rockefeller, 410 U. S., at 761; Dunn v. Blumstein, 405 U. S., at 345; Bullock v. Carter, 405 U. S. 134, 145 (1972). And, it seems to me, means of the kind Illinois has employed are reasonably related to the fulfillment of that interest. The extent to which organized party raiding can disrupt, with unfortunate results, the orderly process of party primary balloting is, perhaps, open to reasonable differences of opinion. Indeed, in this case the parties have joined issue as to the precise degree of impact this practice has had in recent Illinois elections. Regardless of which factual version is to be credited, the legitimacy of the interest is unquestioned. With respect to a State like Illinois, where party regimentation on an extensive scale is legendary, the Court, in my view, should move cautiously when it is tempted to pass judgment in terms of assuming that there is a better or a less drastic means by which the State is able to achieve its admittedly laudable and lawful purpose.

By resorting to a standard of rigid and strict review, and by indulging in what I fear is a departure from the appropriately deferential approach in Rosario, the Court places itself in the position of failing to give the States the elbow room they deserve and must possess if they are to formulate solutions for the many and particular problems confronting them that are associated with the preservation of the integrity of the franchise. Cf. Phoenix v. Kolodziejski, 399 U. S. 204 (1970); Burns v. Fortson, 410 U. S. 686, 687 (1973) (concurring opinion). Surely, at some point, the important interest of the State in protecting its entire electoral system outweighs a minor and incidental burden that happens to fall on a few uniquely situated citizens.

The Illinois Legislature has determined that a rule precluding voting in the primaries of different parties in successive annual elections is a desirable and necessary means by which to preserve an otherwise vulnerable structure. In Rosario, 410 U. S., at 762, we applied a “particularized legitimate purpose” standard to a similarly directed scheme and upheld the New York statute. As Mr. Justice Rehnquist points out in his dissent, post, at 68, the degree of disenfranchisement resulting from the New York provision is potentially as great as, if not greater than, the Illinois provision challenged here. That case and this one, taken together, therefore, effect incongruous results. Not only is the actual disenfranchisement in this case no greater than that in Rosario, but the Illinois provision has a more rational relation to its purpose than does the New York provision. The New York statute specified an arbitrary time period prior to which it is assumed that organized party switching for raiding purposes will not occur. In contrast, Illinois chose not to employ a flat time limit that is by nature speculative and arbitrary; instead, it tied its disqualification directly to a significant event, namely, a vote in another party's last primary. Seemingly, the 23-month period was chosen so that the limitation would not extend back beyond the most recent primary. When primaries are held annually, the 23-month period amounts to no more than a one-year limitation, and in this respect the statute is drawn as narrowly as can be expected for a system that is tied to a prior primary vote rather than a designated time period. By tying the cutoff to a primary, the Illinois scheme seems directly designed to succeed in preventing organized crossovers, for it is highly unlikely that any significant number of party regulars would ever be instructed not to vote at all in one primary in order to subvert the next one that will not be held for another year.

Mr. Justice Rehnquist also observes that the Illinois system does have the side effect of creating a per se exclusion for a few voters. It is this factor, apparently, that has caused the Court to seek to distinguish Rosario. In New York the disqualification occasioned by the time limit will have its impact, more often than not, upon those who have not been diligent. This, indeed, was the very situation in Rosario. The Illinois provision, on the other hand, affects only party switchers. And they clearly are the group most amenable to organized raiding. I do not agree that any marginal difference that may exist between the New York rule and the Illinois rule must have the effect of transforming a “legitimate time limitation,” Rosario, 410 U. S., at 762, into an unconstitutional denial of freedom of association. This incongruity underscores what I believe to be the potential mischief that results from an easy and all-too-ready resort to a strict-scrutiny standard in election cases of this kind. To be sure, the line between constitutionality and unconstitutionality must be drawn somewhere. But I would not draw it short of what Illinois has done here.

Mr. Justice Rehnquist,

with whom Mr. Justice Blackmun joins, dissenting.

The Court decides that the Illinois rule disqualifying a person from voting in the primary of one political party if he has voted in the primary of another political party during the preceding 23 months imposes an impermissible burden on Illinois voters’ exercise of their right of free political association. In so doing it distinguishes Rosario v. Rockefeller, 410 U. S. 752 (1973), decided last Term. I find Rosario more difficult to distinguish than does the Court.

Section 7-43 of the Illinois Election Code provides that every person eligible to register to vote is entitled to vote at primary elections; it goes on to set out a number of exceptions to that general entitlement, including both persons disqualified under the 23-month rule challenged in this case and persons disqualified because they refuse to declare a party affiliation. Section 7-44 requires a primary voter to declare his party affiliation to the primary judges at the polling place; it further provides that, if challenged, the voter must establish his right to vote. Section 7-45 requires a challenged voter to supply an affidavit, in a statutorily prescribed form, to establish that he is entitled to vote under § 7-43. The affidavit states, inter alia, that the affiant has' not voted in the primary of any other political party within the forbidden 23-month period.

The Illinois system of primary elections, unlike the New York system before the Court in Rosario, does not require a voter to have enrolled as a member of a party months in advance in order to be eligible to vote in that party’s primary. Illinois provides instead for a declaration of party affiliation at the primary polling place. And Illinois, not surprisingly in view of its different primary system, has chosen another way to protect its interest in preventing “raiding” than has New York. It is true, as the Court makes clear, that the Illinois rule requires a voter affiliated with one party to sit out primaries during a period of 23 months in order to effectuate a switch in affiliation to another party and qualify to vote in its primaries. In this respect Illinois’ rule imposes a greater burden on its voters’ associational freedom than does New York’s, since in New York a sufficiently prescient and diligent voter can vote in a different party’s primary every year. Of course, it cannot be said whether the Illinois appellee here underwent her change in party loyalty in time, and would have taken the necessary steps to enroll, had Illinois had New York’s rule.

On the other hand, Illinois’ rule imposes a lesser burden on its previously unaffiliated voters than does New York’s. Indeed, it imposes a lesser burden on any voter who has, for whatever reason, failed to vote in the primary of another party within the past 23 months. Such voters are not required to foresee their interest in the primary by eight or more months, as are New York voters under the rule upheld in Rosario. As a practical matter, a voter is not required to swear that he has not participated in the primary of another party as a condition of his right to vote unless he is challenged. In these respects the Illinois rule is more closely tailored to the State’s interest in preventing “raiding” than is the New York rule. Voters who have recently demonstrated loyalty to another party by voting in its primary, are more likely than those who have not to engage in “raiding.” Moreover, challenges for violations of the 23-month rule are not likely to be made where no serious danger of “raiding” is perceived.

Both the Illinois rule struck down today and the New York rule upheld in Rosario restrict voters’ freedom to associate with the political party of their choice. In both instances the State has sought to justify the restrictions as promoting the State’s legitimate interest in preventing “raiding.” • While neither rule is perfectly fashioned to accomplish that and no other result, I cannot conclude that the Illinois rule imposes a significantly greater burden on the exercise of associational freedom than does the New York rule we upheld last Term in Rosario.

       Ill. Rev. Stat., c. 46, § 7-43 provides, in pertinent part:
      “No person shall be entitled to vote at a primary:
      “(d) If he has voted at a primary held under this Article 7 of another political party within a period of 23 calendar months next preceding the calendar month in which such primary is held: Provided, participation by a primary elector in a primary of a political party which, under the provisions of Section 7-2 of this Article, is a political party within a city, village or incorporated town or town only and entitled hereunder to make nominations of candidates for city, village or incorporated town or town offices only, and for no other office or offices, shall not disqualify such primary elector from participating in other primaries of his party: And, provided, that no qualified voter shall be precluded from participating in the primary of any purely city, village or incorporated town or town political party under the provisions of Section 7-2 of this Article by reason of such voter having voted at the primary of another political party within a period of 23 calendar months next preceding the calendar month in which he seeks to participate is held.”

       The Republican primary in which the appellee voted involved nominations for the offices of mayor, city clerk, and city treasurer of Chicago.

       The March 1972 Democratic primary involved, inter alia, nominations for Governor, United States Senator, United States Representative, state legislators, county officers, and delegates to the National Convention of the Democratic Party.

       28 U. S. C. §§2281, 2284.

       The District Court upheld the constitutional validity of Ill. Rev. Stat., c. 46, §§ 7-43 (a) and 7-44, which require a declaration of party affiliation as a prerequisite to voting in a primary election. This holding, which was unanimous, has not been appealed.

       This case was consolidated in the District Court with a similar action brought by two other voters against the county clerk of Lake County, Illinois. The defendant in that case has not appealed from the District Court’s judgment.

       The appellants in this case are members of the Chicago Board of Election Commissioners, who are responsible for administering the provisions of the Illinois Election Code within the city. See Ill. Rev. Stat., c. 46, § 6-21 et seq.

       Bracketed material in original.

       Ill. Rev. Stat., c. 46, § 7-2 defines the term “political party” under Illinois law, and states the offices for which various types of political parties are entitled to make nominations. Under § 7-2, a party that garners more than 5% of the entire vote cast at a statewide general election is defined as a “political party within the State,” and is entitled to make nominations for all state and county offices in the next succeeding primary. Similarly, a party that polls more than 5% of the entire vote cast at a municipal general election is defined as a “political party within . . . [a] city,” and is entitled to make nominations for city elective positions at the next succeeding primary.
      Under § 7-43 (d), a “political party within a city . . . only” is one that has qualified under §7-2 to make only city nominations; in other words, a party that has polled more than 5% of the vote at the preceding municipal general election, but less than 5% of the vote at the preceding statewide general election. Obviously, the Republican party, in whose 1971 Chicago primary the appellee voted, does not fit within this description.

       It is true, as the appellants argue, that the plaintiff in Faherty v. Board of Election Comm’rs, 5 Ill. 2d 519, 126 N. E. 2d 235, wished to vote in a Chicago Democratic primary after having voted, within the past year, in a statewide Republican primary; thus, the factual setting in Faherty was precisely the converse of that here. This, however, is a distinction without a difference. The holding of Faherty was that Republican and Democratic primaries, even those involving only citywide offices, were not primaries of political parties “within a city . . . only.” See n. 9, supra. Thus, these primaries are fully within the purview of the § 7-43 (d) 23-month rule.

       See Art. I, §2; Art. II, §1. With respect to elections to federal office, however, the Court has held that Congress has power to establish voter qualifications. Oregon v. Mitchell, 400 U. S. 112.

        NAACP v. Alabama, 357 U. S. 449, 462.

        Bates v. Little Rock, 361 U. S. 516, 523.

       N. Y. Election Law § 186.

       New York presidential primaries are held in June; thus, in presidential election years, the cutoff date prescribed by § 186 occurs about eight months before the primary. Rosario v. Rockefeller, 410 U. S. 752, 760.

       She could, of course, have made herself eligible to vote in the 1972 Democratic primary by forgoing participation in the 1971 Republican primary. But such a course would have prevented her from associating with the party of her choice in 1971, and thus in no way would have obviated the constitutional deficiencies inherent in the Illinois law.

       Ill. Rev. Stat., c. 46, §7-43, provides:
      “Every person having resided in this State 6 months and in the precinct 30 days next preceding any primary therein who. shall be a citizen of the United States above the age of 21 years, shall be entitled to vote at such primary.
      “The following regulations shall be applicable to primaries:
      “No person shall be entitled to vote at a primary:
      “(a) Unless he declares his party affiliations as required by this Article;
      “(b) Who shall have signed the petition for nomination of a candidate of any party with which he does not affiliate, when such candidate is to be voted for at the primary;
      “(c) Who shall have signed the nominating papers of an independent candidate for any office for which office candidates for nomination are to be voted for at such primary; or
      “(d) If he has voted at a primary held under this Article 7 of another political party within a period of 23 calendar months next preceding the calendar month in which such primary is held: Provided, participation by a primary elector in a primary of a political party which, under the provisions of Section 7-2 of this Article, is a political party within a city, village or incorporated town or town only and entitled hereunder to make nominations of candidates for city, village or incorporated town or town offices only, and for no other office or offices, shall not disqualify such primary elector from participating in other primaries of his party: And, provided, that no qualified voter shall be precluded from participating in the primary of any purely city, village or incorporated town or town political party under the provisions of Section 7-2 of this Article by reason of such voter having voted at the primary of another political party within a period of 23 calendar months next preceding the calendar month [in which such primary] in which he seeks to participate is held.
      “(e) In cities, villages and incorporated towns having a board of election commissioners only voters registered as provided by Article 6 of this Act shall be entitled to vote at such primary.
      “(f) No person shall be entitled to vote at a primary unless he is registered under the provisions of Article 4, 5 or 6 of this Act, when his registration is required by any of said Articles to entitle him to vote at the election with reference to which the primary is held.”

       Ill. Rev. Stat., c. 46, § 7-44 provides: “Any person desiring to vote at a primary shall state his name, residence and party affiliation to the primary judges, one of whom shall thereupon announce the same in a distinct tone of voice, sufficiently loud to be heard by all persons in the polling place. When article 4, 5 or 6 is applicable the Certificate of Registered Voter therein prescribed shall be made and signed and the official poll record shall be made. If the person desiring to vote is not challenged, one of the primary judges shall give to him one, and only one, primary ballot of the political party with which he declares himself affiliated, on the back of which such primary judge shall endorse his initials in such manner that they may be seen when the primary ballot is properly folded. If the person desiring to vote is challenged he shall not receive a primary ballot from the primary judges until he shall have established his right to vote as hereinafter provided. No person who refuses to state his party affiliation shall be allowed to vote at a primaiy.”