406 U.S.

583
92 S.Ct. 1716
32 L.Ed.2d 317

SOCIALIST LABOR PARTY et al., Appellants,

v.
John J. GILLIGAN, Governor of the State of Ohio, et al.
No. 7021.
May 30, 1972.

Syllabus
Appellant political party, its officers, and members, attacked the
constitutionality of revisions of the Ohio election code made following
this Court's decision in Socialist Labor Party v. Rhodes, 393 U.S. 23, 89
S.Ct. 5, 21 L.Ed.2d 24, and a provision that a political party execute a
loyalty affidavit under oath in order to obtain a ballot position. The
District Court, deciding the case on cross-motions for summary judgment
on the basis of the pleadings and supporting affidavits, upheld all
appellants' challenges except that involving the oath provision. All parties
appealed. A revision of the election code made after this Court noted
probable jurisdiction mooted all but the oath issue. Appellants, who did
not attack the oath provision in Rhodes and who have been on the ballot
and presumably have complied with that provision since its adoption in
1941, contend that it violates the First Amendment, is impermissibly
vague, does not comport with due process, and, since it applies to them
and not the two major political parties, violates equal protection. Held:
The record and pleadings on the one issue not mooted by the supervening
legislation (an issue that received scant attention in appellants' complaint
and none in the affidavits supporting the cross-motions for summary
judgment) are inadequate for resolution of the constitutional questions
presented, and in view of the abstract and speculative posture of the case
the appeal must therefore be dismissed. Rescue Army v. Municipal Court,
331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666. Pp. 585589.
D.C., 318 F.Supp. 1262, appeal dismissed.
Sanford Jay Rosen, New York City, for appellants.

Donald J. Guittar, Asst. Atty. Gen., Columbus, Ohio, for appellees.

Mr. Justice REHNQUIST delivered the opinion of the Court.

Appellant Socialist Labor Party has engaged in a prolonged legal battle to

invalidate various Ohio laws restricting minority party access to the ballot.
Concluding that 'the totality of the Ohio restrictive laws taken as a whole'
violated the Equal Protection Clause of the Fourteenth Amendment, this Court
struck down those laws in Socialist Labor Party v. Rhodes, 393 U.S. 23, 34, 89
S.Ct. 5, 12, 21 L.Ed.2d 24 (1968).1 Following that decision the Ohio
Legislature revised the state election code, but the Party was dissatisfied with
the revisions and instituted the present suit in 1970.

The Socialist Labor Party, its officers, and members joined as plaintiffs in
requesting a three-judge District Court to invalidate on constitutional grounds
various sections of the revised election laws of Ohio. The plaintiffs specifically
challenged provisions of the Ohio election laws requiring that a party either
receive a certain percentage of the vote cast in the last preceding election or
else file petitions of qualified electors corresponding to the same percentage;
provisions relating to the organizational structure of a party; provisions
requiring that a political party elect a specified number of delegates and
alternates to a state convention; and provisions requiring a party to be part of a
national political party that holds national conventions at which delegates
elected in state primaries nominate presidential and vicepresidential candidates.
In addition, they challenged that part of the Ohio election code requiring a
political party to file an affidavit under oath stating in substance that the party is
not engaged in an attempt to overthrow the government by force or violence, is
not associated with a group making such an attempt, and does not carry on a
program of sedition or treason as defined by the criminal law.

The case was decided on cross-motions for summary judgment, the three-judge
District Court having before it the complaint and answer of the respective
parties, and affidavits filed pursuant to Fed.Rule Civ.Proc. 56. The court ruled
on the merits in favor of all of appellants' constitutional challenges to the Ohio
election laws except that involving the oath requirement, with respect to which
it ruled in favor of the appellees. Both sides appealed to this Court, and we
noted probable jurisdiction. 401 U.S. 991, 91 S.Ct. 1223, 28 L.Ed.2d 529
(1971).

Since then, the posture of this litigation has undergone a significant change. On
December 23, 1971, the Ohio Legislature enacted Senate Bill No. 460, which

embodied an extensive revision of the state election code. Both sides now agree
that the passage of this Act renders moot all but one of the issues decided
below. The one challenged provision that remains unamended is the State's
requirement that a political party execute the above-described affidavit under
oath in order to obtain a position on the ballot.
5

Appellants' 1970 complaint represented a broadside attack against interrelated

and allegedly overly restrictive provisions of the Ohio election laws. The threejudge District Court, in its ruling for the appellants on the issues that have now
become moot, stated:

'The 1969 amendments to the election laws merely perpetuate the restrictive
laws enacted between 1948 and 1952. The overall effect of these laws is still to
deny to plaintiffs their constitutional right of political associations.' 318 F.Supp.
1262, 12691270 (footnote omitted).

Thus appellants, at the time they filed their 1970 action, were fenced out of the
political process by a series of restrictive provisions that prevented them from
making any progress toward a position on the ballot as a designated political
party. Their challenge was necessarily of a somewhat abstract character, since
under their allegations they were able to comply with very few of the provisions
regulating access to the ballot. Now, however, with the enactment of a revised
election code, the abstract character of the single remaining challenge to the
Ohio election procedures stands out all the more.

Appellants did not in their action that came here in 1968 challenge the loyalty
oath. Their 1970 complaint respecting the loyalty oath is singularly sparse in its
factual allegations. There is no suggestion in it that the Socialist Labor Party
has ever refused in the past, or will now refuse, to sign the required oath. There
is no allegation of injury that the party has suffered or will suffer because of the
existence of the oath requirement.

It is fairly inferable that the absence of such allegations is not merely an

oversight in the drafting of a pleading. The requirement of the affidavit under
oath was enacted in 1941, 119 Ohio Laws 586, and has remained continuously
in force since that date. The Socialist Labor Party has appeared on the state
ballot since the law's passage, and, unless the state officials have ignored what
appear to be mandatory oath provisions, it is reasonable to conclude that the
party has in the past executed the required affidavit.

10

It is axiomatic that the federal courts do not decide abstract questions posed by

parties who lack 'a personal stake in the outcome of the controversy.' Baker v.
Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962); Flast v.
Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947 (1968).
Appellants argue that the affidavit requirement violates the First and Fourteenth
Amendments, but their pleadings fail to allege that the requirement has in any
way affected their speech or conduct, or that executing the oath would impair
the exercise of any right that they have as a political party or as members of a
political party. They contend that to require it of them but not of the two major
political parties denies them equal protection, but they do not allege any
particulars that make the requirement other than a hypothetical burden. Finally,
they claim that the required affidavit is impermissibly vague and that its
enforcement procedures do not comport with due process. But the record before
the three-judge District Court, and now before this Court, is extraordinarily
skimpy in the sort of proved or admitted facts that would enable us to
adjudicate this claim. Since appellants have previously secured a position on
the ballot with no untoward consequences, the gravamen of their claim that it
injures them remains quite unclear.
11

In the usual case in which this Court has passed on the validity of similar oath
provisions, the party challenging constitutionality was either unable or
unwilling to execute the required oath and, in the circumstances of the
particular case, sustained, or faced the immediate prospect of sustaining, some
direct injury as a result of the penalty provisions associated with the oath. See,
e.g., Cole v. Richardson, 405 U.S. 676, 92 S.Ct. 1332, 31 L.Ed.2d 593 (1972);
Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629
(1967); Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216
(1952).

12

In Cramp v. Board of Public Instruction, 368 U.S. 278, 283 285, 82 S.Ct. 275,
278280, 7 L.Ed.2d 285 (1961), the appellants were public school teachers
who had been threatened with discharge for their refusal to execute the required
oath. The Court held that even though appellants might be able to sign the
required oath in good conscience, the record there indicated that they would
still be subject to possible hazards of a perjury conviction by reason of the
vagueness of the oath's language. In the present case, however, appellants have
apparently signed the oath at previous times, and so far as this record shows
they have suffered no injury as a result. The State has never questioned the
truth of the affidavit, and appellants' conduct and associations have not been
constricted as a result of their having executed the affidavit.

13

The long and the short of the matter is that we know very little more about the
operation of the Ohio affidavit procedure as a result of this lawsuit than we

would if a prospective plaintiff who had never set foot in Ohio had simply
picked this section of the Ohio election laws out of the statute books and filed a
complaint in the District Court setting forth the allegedly offending provisions
and requesting an injunction against their enforcement. These plaintiffs may
well meet the technical requirement of standing, and they may be parties to a
case or controversy, but their case has not given any particularity to the effect
on them of Ohio's affidavit requirement.
14

This Court has recognized in the past that even when jurisdiction exists it
should no be exercised unless the case 'tenders the underlying constitutional
issues in clean-cut and concrete form.' Rescue Army v. Municipal Court, 331
U.S. 549, 584, 67 S.Ct. 1409, 1427, 91 L.Ed. 1666 (1947). Problems of
prematurity and abstractness may well present 'insuperable obstacles' to the
exercise of the Court's jurisdiction, even though that jurisdiction is technically
present. Id., at 574, 67 S.Ct., at 1422.2

15

We find that the present posture of this case raises just such an obstacle. All
issues litigated below have become moot except for one that received scant
attention in appellants' complaint and was treated not at all in the affidavits filed
in support of the cross-motions for summary judgment. Nothing in the record
shows that appellants have suffered any injury thus far, and the law's future
effect remains wholly speculative. Notwithstanding the indications that
appellants have in the past executed the required affidavit without injury, it is,
of course, possible that at some future time they may be able to demonstrate
some injury as a result of the application of the provision challenged here. Our
adjudication of the merits of such a challenge will await that time. This appeal
must be dismissed. Rescue Army v. Municipal Court, supra, 331 U.S., at 585,
67 S.Ct., at 1427.

16

It is so ordered.

17

Appeal dismissed.

18

Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN and Mr. Justice
MARSHALL concur, dissenting.

19

The oath required of appellants for political recognition in Ohio is plainly

unconstitutional as a denial of equal protection. Because I believe this a proper
case for declaratory relief, I would therefore reverse the judgment below.

20

In order to 'be recognized or be given a place on the ballot in any primary or

general election,' Ohio requires that members of political parties file a loyalty
oath with the Secretary of State. Ohio Rev. Code Ann. 3517.07 (1960) (see
appendix to this opinion). I need not consider the vagueness or overbreadth of
the Ohio oath, for my views on that subject have been stated over and over
again.1 For the present case, it is sufficient for my decision that Ohio requires
the oath based upon the invidious classification of political allegiance.
21

An exception from the oath requirement is made for 'any political party or
group which has had a place on the ballot in each national and gubernatorial
election since the year 1900.' Ibid. It is conceded that this exemption applies
only to the Democratic and Republican Parties (see Plaintiffs' Motion for
Summary Judgment), and we may properly treat it as if it were written in
precisely those terms. See Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83
L.Ed. 1281 (1939); Guinn v. United States, 238 U.S. 347, 35 S.Ct. 926, 59
L.Ed. 1340 (1915). This exception is thus part of the broader pattern of Ohio's
discriminatory preference for the two established political parties. We
considered this discrimination before in Williams v. Rhodes, 393 U.S. 23, 31,
89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968), and said:

22

'No extended discussion is required to establish that the Ohio laws before us
give the two old, established parties a decided advantage over any new parties
struggling for existence and thus place substantially unequal burdens on both
the right to vote and the right to associate. The right to form a party for the
advancement of political goals means little if a party can be kept off the
election ballot and thus denied an equal opportunity to win votes. So also, the
right to vote is heavily burdened if that vote may be cast only for one of two
parties at a time when other parties are clamoring for a place on the ballot. In
determining whether the State has power to place such unequal burdens on
minority groups where rights of this kind are at stake, the decisions of this
Court have consistently held that 'only a compelling state interest in the
regulation of a subject within the State's constitutional power to regulate can
justify limiting First Amendment freedoms."

23

In a separate opinion, I noted, 'The Equal Protection Clause of the Fourteenth

Amendment permits the States to make classifications and does not require
them to treat different groups uniformly. Nevertheless, it bans any 'invidious
discrimination." Id., at 39, 89 S.Ct., at 15. Classifications based upon political
or religious associations, beliefs, or philosophy are such 'invidious'
classifications. As Mr. Justice Black said in Cox v. Louisiana, 379 U.S. 559,
581, 85 S.Ct. 466, 470, 476, 13 L.Ed.2d 487:

24

'(B)y specifically permitting picketing for the publication of labor union views,

Louisiana is attempting to pick and choose among the views it is willing to

have discussed on its streets. It thus is trying to prescribe by law what matters
of public interest people whom it allows to assemble on its streets may and mat
not discuss. This seems to me to be censorship in a most odious form,
unconstitutional under the First and Fourteenth Amendments. And to deny this
appellant and his group use of the streets because of their reviews against racial
discrimination, while allowing other groups to use the streets to voice opinions
on other subjects, also amounts, I think, to an invidious discrimination
forbidden by the Equal Protection Clause of the Fourteenth Amendment.'
25

'While I doubt that any state interest can be so compelling as to justify an

impairment of associational freedoms in the area of philosophypolitical or
otherwise,' Lippitt v. Cipollone, 404 U.S. 1032, 10331034, 92 S.Ct. 729, 730,
30 L.Ed.2d 725 (Douglas, J., dissenting); see also Williams v. Rhodes, supra,
393 U.S., at 3940, 89 S.Ct., at 1415 (separate opinion of Douglas, J.), the
appellees have not even offered a colorable explanation for the disparate
treatment of the separate political parties. I conclude, therefore, that the unequal
burden placed upon appellants is unconstitutional.2

26

The Court does not reach appellants' challenge to the loyalty oath, however,
because it concludes that 'they do not allege any particulars that make the (oath)
requirement other than a hypothetical burden.' Ante, at 587. In sharp contrast to
the decision in Rescue Army v. Municipal Court, 331 U.S. 549, 67 S.Ct. 1409,
91 L.Ed. 1666 (1947), the only case upon which it relies,3 the Court does not
explain what additional facts it feels are necessary to reach the merits. In basing
its decision on this ground, I fear that the Court has taken an unduly narrow
view of declaratory relief.

27

Appellants argue that the oath is facially invalid for the indivious classification
it creates, for its overbreadth and its vagueness. Certainly such challenges to the
facial validity of a statute are ideally suited for declaratory judgment. Moore v.
Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1. There can be no question
of appellants' stake in the controversy, for if they refuse to subscribe to the oath
they will be denied political recognition, cf. Law Students Civil Rights
Research Council, Inc. v. Wadmond, 401 U.S. 154, 91 S.Ct. 720, 27 L.Ed.2d
749 (1971); Baird v. State Bar of Arizona, 401 U.S. 1, 91 S.Ct. 702, 27 L.Ed.2d
639 (1971); while, in order to obtain such recognition, they must subscribe to
an unconstitutional oath or subject themselves to an invidious classification.4
Cf. Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629
(1967); Cramp v. Board of Public Instruction, 368 U.S. 278, 82 S.Ct. 275, 7
L.Ed.2d 285 (1961).5 Under either alternative, appellants have 'such a personal
stake in the outcome . . . as to assure that concrete adverseness which sharpens

the presentation of issues upon which the court so largely depends.' Baker v.
Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). Nor is this a
case where appellants' injury is only speculative, cf. Golden v. Zwickler, 394
U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969), for they allege that they 'will
continue to nominate candidates for political office in Ohio in the future.'
28

Evers v. Dwyer, 358 U.S. 202, 79 S.Ct. 178, 3 L.Ed.2d 222 (1958), is relevant
here. The appellant in that case was a black who sought a declaratory judgment
that a state statute requiring the segregation of the races on municipal buses
was unconstitutional. In dismissing the complaint, the District Court took the
approach this Court takes today and reasoned that appellant 'ha(d) not been
injured at all' because 'he was not a regular or even an occasional user of bus
transportation.' We summarily reversed that decision, saying that an individual
'subjected by statute to special disabilities necessarily has, we think, a
substantial, immediate, and real interest in the validity of the statute which
imposes the disability.' 358 U.S., at 204, 79 S.Ct., at 179. And see Gooding v.
Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408.

29

In Evers, we did not base our decision on any consideration of whether the seats
blacks were required to take were better or worse than those available to whites.
Rather, we held that members of a disfavored minority could challenge
unconstitutional statutory classifications which set them apart. That was the
'disability' to which we referred. Appellants are members of an unfavored
political minority in Ohio and they too should be able to challenge invidious
classifications which set them apart from the favored majority.

30

Since 1946, appellants and other minority political parties in Ohio have been
repressed by legislation enacted by the two dominant parties. In the last four
years, they have sought relief from these shackles so that their voices could be
heard in the political arena.6 But Ohio has erected innumerable roadblocks to
their participation. Under the majority's decision, each obstacle will require a
separate lawsuit because it will only be after they have been frustrated at a
particular turn that they will be able to satisfy this new test for declaratory
relief.

31

The modern remedy of declaratory, judgments should be used to simplify, not

multiply, litigation.

32

I would reverse the judgment below.

APPENDIX TO OPINION OF DOUGLAS, J., DISSENTING

Ohio Rev.Code Ann. 3517.07 (1960):

33

'No political party or group which advocates, either directly or indirectly, the
overthrow, by force or violence, of our local, state, or national government or
which carries on a program of sedition or treason by radio, speech, or press or
which has in any manner any connection with any foreign government or power
or which in any manner has any connection with any group or organization so
connected or so advocating the overthrow, by force or violence, of our local,
state, or national government or so carrying on a program of sedition or treason
by radio, speech, or press shall be recognized or be given a place on the ballot
in any primary or generaly election held in the state or in any political
subdivision thereof.

34

'Any party or group desiring to have a place on the ballot shall file with the
secretary of state and with the board of elections in each county in which it
desires to have a place on the ballot an affidavit made by not less than ten
members of such party, not less than three of whom shall be executive officers
thereof, under oath stating that it does not advocate, either directly or indirectly,
the overthrow, by force or violence, of our local, state or national government;
that it does not carry on any program of sedition or treason by radio, speech, or
press; that it has no connection with any foreign government or power; that it
has no connection with any group or organization so connected or so
advocating, either directly or indirectly, the overthrow, by force or violence, of
our local, state, or national government or so carrying on a program of sedition
or treason by radio, speech, or press.

35

'Said affidavit shall be filed not less than six nor more than nine months prior to
the primary or general election in which the party or group desires to have a
place on the ballot. The secretary of state shall investigate the facts appearing in
the affidavit and shall within sixty days after the filing thereof find and certify
whether or not this party or group is entitled under this section to have a place
on the ballot.

36

'Any qualified member of such party or group or any elector of this state may
appeal from the finding of the secretary of state to the supreme court of Ohio.

37

'This section does not apply to any political party or group which has had a
place on the ballot in each national and gubernatorial election since the year
1900.'

That case was decided together with Williams v. Rhodes, 393 U.S. 23, 89 S.Ct.

That case was decided together with Williams v. Rhodes, 393 U.S. 23, 89 S.Ct.
5, 21 L.Ed.2d 24 (1968).

Despite the contrary implication in the dissent, see post, at 592593 n. 3, the
holding of Rescue Army has been applied by this Court to numerous appeals in
which no statutory or constitutional impediment to jurisdiction was present.
See, e.g., Cowgill v. California, 396 U.S. 371, 90 S.Ct. 613, 24 L.Ed.2d 590
(1970) (Harlan, J., concurring); Atlanta Newspapers, Inc. v. Grimes, 364 U.S.
290, 81 S.Ct. 63, 5 L.Ed.2d 39 (1960); International Brotherhood of Teamsters
v. Denver Milk Producers, Inc., 334 U.S. 809, 68 S.Ct. 1015, 92 L.Ed. 1741
(1948). Nor has there ever been any suggestion that Rescue Army should apply
only to appeals from state, rather than federal, courts. See United States v.
Fruehauf, 365 U.S. 146, 157, 81 S.Ct. 547, 553, 5 L.Ed.2d 476 (1961); United
States v. CIO, 335 U.S. 106, 125126, 68 S.Ct. 1349, 13581359, 92 L.Ed.
1849 (1948) (Frankfurter, J., concurring). See also Albertson v. Millard, 345
U.S. 242, 245, 73 S.Ct. 600, 602, 97 L.Ed. 983 (1953). Despite this lack of case
support, the dissent argues that the Rescue Army doctrine should not apply to
the present case, since it is an appeal from a federal court judgment pursuant to
28 U.S.C. 1253, whereas Rescue Army was an appeal from a state court
judgment pursuant to 28 U.S.C. 1257. This distinction is evanescent. Under
both grants of jurisdiction this Court is obligated to rule upon those properly
presented questions that are necessary for decision of the case. But when the
issues are not presented with the clarity needed for effective adjudication,
appellate review of a federal court judgment is every bit as inappropriate as was
review of a state court judgment in Rescue Army.

E.g., Cole v. Richardson, 405 U.S. 676, 687, 92 S.Ct. 1332, 1338, 31 L.Ed.2d
593 (1972) (dissenting opinion); DuBois Clubs v. Clark, 389 U.S. 309, 313, 88
S.Ct. 450, 453, 19 L.Ed.2d 546 (1967) (dissenting opinion); Elfbrandt v.
Russell, 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321 (1966); Nostrand v. Little,
362 U.S. 474, 476, 80 S.Ct. 840, 842, 4 L.Ed.2d 892 (1960) (dissenting
opinion); First Unitarian Church v. Los Angeles, 357 U.S. 545, 547, 78 S.Ct.
1350, 1351, 2 L.Ed.2d 1484 (1958) (concurring opinion); Speiser v. Randall,
357 U.S. 513, 532, 78 S.Ct. 1332, 1344, 2 L.Ed.2d 1460 (1958) (concurring
opinion).

While the District Court acknowledged that one of appellants' challenges to the
oath was that it 'violates that Equal Protection Clause by excepting the
Democratic and Republican Parties from its ambit,' 318 F.Supp. 1262, 1270,
the court inexplicably did not address this argument.

Rescue Army came on appeal from the Supreme Court of California and
involved a complex state statutory scheme.

The present case, by contrast, comes from a United States District Court where
our appellate jurisdiction is founded upon 28 U.S.C. 1253. It is, I think, an
undue extension of Rescue Army to apply it to an appeal from a federal court
which properly heard
and considered a federal constitutional question. See H. Hart & H. Wechsler,
The Federal Courts and the Federal System 149 (1953). Our differing treatment
of appeals from federal and state courts relates to the difference between the
courts from which the appeals are taken. If an appeal from a state court does
not fall within Art. III, it would in nowise affect the jurisdiction of the court
from which the appeal was taken. Doremus v. Board of Education, 342 U.S.
429, 434, 72 S.Ct. 394, 397, 96 L,.ed. 475 (1952). The same cannot be said,
however, of appeals from federal courts, e.g., Muskrat v. United States, 219
U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246. Thus '(t)he established practice of the
Court in dealing with a civil case from a court in the federal system which has
become moot while on its way here or pending our decision on the merits is to
reverse or vacate the judgment below and remand with a direction to dismiss.'
United States v. Munsingwear, 340 U.S. 36, 39, 71 S.Ct. 104, 106, 95 L.Ed. 36
(1950); see R. Robertson & F. Kirkham, Jurisdiction of the Supreme Court
273, p. 501 (1951). 'If the proceeding is one to review the decision of a state
court,' however, our practice is to 'remand the cause to the state court in order
that that court may take such further proceedings as may be deemed
appropriate.'
The cases cited by the majority, ante, at 588589 n. 2, do not support today's
treatment of an appeal from an Art. III court. In United States v. Fruehauf, 365
U.S. 146, 81 S.Ct. 547, 5 L.Ed.2d 476 (1961), the District Court dismissed an
indictment and we reversed and remanded holding that the provable facts might
bring the case within the statute. In United States v. CIO, 335 U.S. 106, 68
S.Ct. 1349, 62 L.Ed. 1849 (1948), we affirmed the judgment of the District
Court which had dismissed an indictment, because the facts alleged did not state
an offense; and we did not therefore reach the constitutional issue relied upon
by the District Court. Finally, Albertson v. Millard, 345 U.S. 242, 73 S.Ct. 600,
97 L.Ed. 983 (1953), was an abstention case in which we vacated the judgment
of the District Court and remanded with directions to hold the case until the
state law questions had been resolved. None of these cases, therefore, stands for
the proposition that we may dismiss a perfected appeal from a properly entered
judgment of an Art. III court.
4

The suggestion that 'appellants have apparently signed the oath at previous
times,' ante, at 588, and thus somehow have waived their right to object to the
oath, is unsupported by the record. Appellants include not only the Socialist
Labor Party but also its named officers and members who would be required to

execute the oath. Whatever relevance there may be to the fact that the Socialist
Labor Party was on the ballot in Ohio in 1946, that fact has no bearing with
regard to the individual appellants.
5

As to Cramp, it is suggested that 'the record there indicated that (Cramp) would
still be subject to possible hazards of a perjury conviction by reason of the
vagueness of the oath's language.' Ante, at 588. In our opinion in Cramp,
however, we noted that Cramp alleged in his complaint 'that he 'is a loyal
American and does not decline to execute or subscribe to the aforesaid oath for
fear of the penalties provided by law for a false oath," 368 U.S., at 281, 82
S.Ct., at 277. In any event, Ohio also subjects oath takers to the 'possible
hazards of a perjury conviction,' see Ohio Rev.Code Ann. 3599.36, 2917.25
(1960), so Cramp is not distinguishable.

See, e.g., Lippitt v. Cipollone, 404 U.S. 1032, 92 S.Ct. 729, 30 L.Ed.2d 725
(1972), aff'g 337 F.Supp. 1405 (N.D.Ohio 1971); Brockington v. Rhodes, 396
U.S. 41, 90 S.Ct. 206, 24 L.Ed.2d 209 (1969); Williams v. Rhodes, 393 U.S.
23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968), aff'g sub nom. Socialist Labor Party v.
Rhodes, 290 F.Supp. 983 (Ohio 1968); State ex rel. Bible v. Board of Elections,
22 Ohio St.2d 57, 258 N.E.2d 227; see also State ex rel. Beck v. Hummel, 150
Ohio St. 127, 80 N.E.2d 899.