Such study as I have been able to make of the papers, in the short time since they were submitted to the Court, nevertheless convinces me that the chances of the Party's ultimate success on the merits are sufficiently substantial so that we may appropriately take steps to prevent the risk of an irretrievable loss of important federal rights in the approaching election. Unfortunately, while the Court properly seeks to protect appellants from irreparable injury, it has done so in a manner that is almost bound to create substantial confusion in the minds of Alabama's voters when they cast their ballots for the Presidency of the United States. By ordering appellants' slate of Presidential Electors on the ballot, the Court has created a situation in which two different slates, both pledged to support Hubert H. Humphrey and Edmund S. Muskie, will be presented to the electorate in November. In addition to the National Democratic Party, the Alabama Independent Democratic Party—whose right to ballot position is uncontested—has advanced a list of Electors who are pledged to this same national ticket. Since many voters do not realize that they do not have a direct voice in the selection of the President, it will not be clear to them that the votes cast for the Humphrey-Muskie ticket on the National Democratic line of the ballot will not be cumulated in the final tabulation with the votes cast for these same national candidates on the Independent Democratic line. But that, of course, is precisely the legal result—for votes cast for two different Electoral slates are not properly counted together under state law. A split in the Humphrey-Muskie vote, which in large part may simply be the product of ignorance, will be the almost certain result.
In our recent decision in Williams v. Rhodes, 393 U.S. 23, at 33, 89 S. Ct. 5, at 11, 21 L. Ed. 2d 24, at 32 (opinion of the Court); 393 U.S., at 46-47, 89 S.Ct., at 18-19, 21 L.Ed.2d, at 40-41 (concurring opinion of Mr. Justice Harlan), we recognized that the State may properly take steps to prevent a clear risk of voter confusion. This interest should inform our decision here. Alabama's Presidential election will be much fairer, under all the circumstances, without the presence of the National Democratic Party. Moreover, it seems quite evident that it would be possible for the State's election officials to comply with a decision of this Court ordering that all National Democratic candidates, other than those running for the office of Presidential Elector, be placed before the voters in November. My inspection of the sample ballots submitted to us leads me to believe that such an order would present no insuperable administrative obstacles, and I do not understand counsel for the State to contend otherwise.
Equity does not require the broad injunction the Court has issued, but rather an act of discretion that is fully cognizant of all the consequences of our actions.
I would therefore modify the temporary relief this Court granted on October 14, 1968, to permit the State's election officials to remove from the ballot the Party's candidates for the office of Presidential Elector.