dissenting.
In my judgment the Maryland statute unfairly discriminates against independent candidates in one respect. It requires the independent to make his decision to become a candidate much sooner than a member of a national political party.
A party member is merely required to file a certificate of candidacy 70 days before the primary election. That pro*181cedure is so simple that he may postpone his decision until that very day and still satisfy all legal requirements for candidacy. In contrast, the independent must complete the signature gathering process by the 70th day preceding the primary election. Since the task of obtaining the signatures of 3% of the registered voters inevitably will require a significant amount of time, the independent must make his decision to run well in advance of the filing deadline.
In my opinion, the State has not put forward any justification for this disparate treatment. Moreover, it is potentially a matter of great significance. The decision to become a candidate may be prompted by a sudden, unanticipated event of great national or local importance. If such an event should occur on the 71st day before a primary, national party members could make a timely decision to run but independents could not.
The statute should be evenhanded in its impact on the timing of the most important decision any candidate must make. The burdens that an independent must shoulder are heavy enough without requiring him to make that decision before his most formidable opponents must do so.*
*182On the basis of the record developed in the District Court, and the full argument on the merits in this Court, I would therefore affirm the judgment.
In Jenness v. Fortson, 403 U. S. 431, this Court upheld the Georgia filing procedures applicable to independent candidates seeking a place on the general election ballot. These procedures required the independent candidate to collect signatures of at least 5% of the number of registered voters at the last general election for the office in question. Id., at 432. The independent candidate had 180 days in which to accomplish this task and had to file the completed petitions by the same deadline which a party candidate had to meet. Id., at 433-434. Thus, the procedures for filing by independents under the Georgia statute are similar to those aspects of the Maryland procedures in issue here which I find place such a handicap on independent candidates. However, the question I find decisive in this case was neither raised nor decided by the Court in Jenness, see id., at 434. Thus, that decision is not controlling on this point, KVOS, Inc. v. Associated Press, 299 U. S. 269, 279, quoting Webster v. Fall, 266 U. S. 507, 511 (“ 'Questions which merely lurk in the *182record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents’ ”).
For the reasons stated in Edelman v. Jordan, 416 U. S. 651, 670-671, I do not regard the summary affirmance in Auerbach v. Mandel, 409 U. S. 808, as controlling.