*1 No. 32013. [L.A. Dec. 1985.] al., Petitioners,
JACK CANAAN et ABDELNOUR, Clerk, etc., al.,
CHARLES et City Respondents.
Counsel
Michael Schaefer for Petitioners. Amicus of Petitioners. Curiae on behalf Marshall as
Gregory Johnson, City Chief Witt, Deputy L. Senior John W. Ronald City Attorney, So, Kenneth Gordon, City Attorney, Chief P. Attorney, Eugene Deputy Counsel, P. Jr., Howard Harmon, County M. City Attorney, Lloyd Deputy Counsel, County J. Boyle, Deputy and Susan Chief Brody, Deputy County Counsel, for Respondents.
Opinion BIRD, C. J. Does the of San City Diego’s prohibition elections violate the state or federal Constitutions? municipal *5 I. in The California for write-in Elections Code provides procedures 7300-7313, Code, federal, 17100- (Elec. all state and local elections. §§ However, charter cities 17102.)1 the California Constitution authorizes on the laws general election adopt municipal regulations irrespective to this Const., XI, (b)(3).) Pursuant (Cal. same art. subd. subject. § authorization, enacted reg- has City Diego constitutional the charter of San ac- time this ulations elections. At the the conduct of governing municipal Code pro- tion Diego Municipal was section 27.2205 of the San brought, elections.2 On hibited write-in municipal in all and primary general 17, 1985, case, Council City June San Diego after oral in this argument and write-in voting amended candidates section 27.2205 to allow write-in are still pro- elections. Write-ins municipal primary special primary any candidate the name of provides: “Every 1Section 17102 be entitled to write voter shall President, office, any the ballot of any public including for that of President and Vice contest (Cf. there is no cancelled because election.” 22843.5 write-ins where election § [no voters]; any municipal city § [incum for office and no measure to be submitted to days before filed 59 opposition judge’s bent name removed from the ballot when no election], 726-727.) general post, pp. see permitted. A shall be superseded write-in candidates provided: 2The section 27.2205 “No be counted ballot shall any printed not on the official containing person ballot the name of name appear.” as if the added did not hibited in municipal, special general recall elections.3 This court take may judicial notice of (Evid. the amendment of the ordinance. Code, (b).) subd. §
Under San scheme, Diego’s new a candidate may qualify placement on the primary ballot by later filing than 60 nominating petition days before the primary election.4 Write-in candidates file may nominating pa deadline, after the pers filing to 14 up before the election. days primary (San Code, Mun. Diego 27.3209.) A candidate who receives a majority § in the (San primary Charter, elected. 10.) If no Diego candidate re § ceives a majority, two candidates number of receiving highest votes are on the placed ballot for the (Ibid.; general elections. San Mun. Diego Code, 27.3210.) The only § candidates for whom the electorate cast valid ballots in the general election are those whose names appear ballot.
This case arose out of the San election of 1984. Nine Diego mayoral ballot, for the qualified primary the incumbent including mayor. After the filing deadline for the election had but before primary passed, a civil primary, suit was filed the San Diego Attorney District against the mayor, alleging certain contributions. In re- irregularities campaign sponse this development, William Brotherton become petitioner sought a write-in candidate for at the June mayor Petitioner Jack Canaan primary. sought to cast a opportunity write-in vote for Brotherton.
Petitioners filed an original for writ of mandate in this court in petition ofMay 1984. Named as were the of San respondents City Charles Diego; *6 Abdelnour, G. the elections; city clerk in of charge administering municipal Ortiz, Raymond Voters; the San of and all Diego County Registrar the mayoral city attorney candidates who had for on qualified placement the ballot. primary Petitioners Abdelnour to sought compel respondent 3Section provides 27.2205 now pertinent in part: permitted “Write-in candidates are in municipal the primary special municipal, elections and primary special elections. General general or recall election containing any ballots person printed the name of on the official 32, ballot shall be counted as if the name appear. added did not ...” Division entitled Candidates,” “Write-in provide filing “nominating was also added. Its sections for the of papers” for write-in days primary residency candidates 14 the for re before election and fees, quirements, filing procedures comparable other in the provided to those elsewhere Code, code for seeking (See candidates placement Diego Mun. ballot. San 27.3201-27.3211.) §§ 4For municipal years, Diego nominating peti elections held in odd-numbered San allows Code, tions to (San be filed no days Diego later than 60 primary. before the Mun. 27.2111.) In years, filing § even-numbered Diego filing San coordinates its deadline with the (Ibid.) result, deadline primary. for the state nominating petition a must be filed not As a Code, days (See 6490.) later than 88 before primary. the Elec. § write-in any effect and to give for candidates write-in petitions accept mailing the stay requested in the election. also They votes to be cast was voting pro- write-in a statement ballots which contained sample was un- on write-in that the hibited. Petitioners argued prohibition the June time for in the They question constitutional. resolution sought Cal.3d (1973) 9 Proc., 44; v. Mellon (See Thompson Code Civ. primary. § court 1029].) This 628, 20, A.L.R.3d 507 P.2d Cal.Rptr. a decision render did not which transferred the case to the Court of Appeal, time for the election. in primary in the who qualified
The incumbent was one of the two mayor After election. general for on the ballot in the election placement primary felonies. election, numerous alleged indicted for the the was mayor primary write- to become a Petitioner Brotherton continued to seek the opportunity Canaan candidate, Petitioner in time in the election. mayoral general this candidate. for a write-in continued to the his vote seek cast opportunity uphold- The Court of rendered decision in September its Appeal in sought hearing ban Petitioners then San on write-in ing Diego’s voting. election, of the resolution court. Given this the imminency general issue in time to affect that election was not possible. election is over matter, although
As a it is clear that preliminary recent years, occasions in court] matter is not moot. “On numerous [this election although particular decided such recurrent election issues ha[s] (1975) 14 v. Grubb (Gould had been initially question long completed.” How 661, 666, 1337],)5 536 P.2d Cal.3d fn. Cal.Rptr. vot ever, on write-in it is unnecessary prohibition consider repealed ante, the ordinance version of (See 2.) elections. fn. ing primary “[T]he of this appeal.” in force at is the relevant present legislation purposes 294, 306, (Kash Cal.3d Inc. v. Los Enterprises, City Angeles Witkin, Cal. Procedure 1302]; fn. 6 562 P.2d see also 9 of San Diego’s (3d 1985), 260.) constitutionality ed. Nor is the § issue, validity since new write-in scheme in elections at primary This opinion either new ordinance has not been briefed or argued party. current prohibition will of San only constitutionality Diego’s address ante, (See fn. at the election. *7 II. and write- on write-in Petitioners that San ban argue Diego’s Con- state and federal clauses of the in violates the equal protection attorney candidates listed city regard specific mayoral and 5The matter is moot with addition, petitioners’ the action. In respondents, they and are therefore dismissed from Consequently, county registrar is moot. stay mailing by the request sample for a ballot Ortiz, voters, respondent. Raymond registrar also dismissed as is stitutions. that the ban because the Respondents argue is permissible regulation in municipal elections charter cities is a strictly municipal (See Const., affair. XI, 5, Cal. art. v. Uhl (b)(3); Party subd. Socialist § (1909) 776, 155 Cal. P. 181].) broad,
Although
city’s
elections is
that
power
regulate municipal
fact is not relevant to a
constitutional
This court addressed
challenge.
Grubb,
similar
argument Gould v.
Although San Diego may the conduct of its regulate municipal it may not do so in a manner which of the state or guarantees violates is, federal therefore, Constitutions. It to examine the constitu- necessary of San tionality on candidates and write-in vot- Diego’s prohibition ing.
Petitioners the ban on challenge protection grounds. They equal contend that strict judicial is because the ban scrutiny required infringes the fundamental (See to vote and run rights office. Gould public Grubb, 14 Cal.3d that must dem argue they Respondents onstrate that the only bears a rational to a prohibition legitimate relationship governmental interest. They assert that have defined no petitioners “suspect class” affected and that no fundamental is prohibition implicat ed. Initially, to consider whether an necessary analysis equal protection or a more direct First Amendment constitu analysis provides proper tional framework in this case. laws, analyzing constitutional to election this court has fol- challenges
lowed closely (See, of the United Court. analysis e.g., States Supreme Fullerton Joint Union School Dist. v. Bd. Education High State 168]; Cal.3d 798-805 654 P.2d Gould v. Cal.Rptr. Grubb, 669-675; 14 Cal.3d Castro v. State of California Cal.3d 228-242 466 P.2d 6See also Williams v. Rhodes Constitution 29 [21 24] “[T]he is filled provisions grant Congress legislate with that in certain specific power or the States areas; granted powers these always subject they are to the limitation that not be exer way cised in a specific provisions violates other of the Constitution.” *8 regulations election validity the The court has addressed high generally However, the court’s selec- the basis for the clause. under equal protection tests protection and the nature equal tion of approach precise And, is true for equal has easily been discernable. always employed of review utilized doctrine in the standard protection general, (1975) Hamilton (See a of flux. Johnson v. election cases has been in state Gunther, 461, 881]; citing 541 P.2d 15 Cal.3d 466-468 Court, Doctrine Evolving The Term—Foreword: In Search Supreme (1972) 86 Changing Equal Protection a A a Newer on Court: Model for 1, 10-15.) Harv.L.Rev. L.Ed.2d
For in Storer v. 415 U.S. example, Brown 1274], Elections Code 94 S.Ct. the Court a California Supreme upheld can- which provision party denied on the ballot placement independent one year didates who had been a prior affiliated with within qualified party (1974) 415 to the election. In Texas White primary American Party of U.S. 767 a state election 1296], L.Ed.2d S.Ct. the court upheld which, alia, a scheme to demonstrate inter independent required certain minimum level of on before for support placement qualifying ballot. both these cases access restric- Court ballot Supreme upheld tions, interests. How- finding that restrictions served state compelling ever, the court did not were explore extent to which the restrictions to achieve the whether less necessary states’ nor did consider purposes, noted, offensive alternatives were available. As one commentator has “[t]he re- baffling most of American the standard of Party and Storer was aspect view . . . mix and minimal being applied. seems have been a of strict [It] (Tribe, scrutiny.” American Law Constitutional
More in Clements v. L.Ed.2d recently, Fashing 957 [73 vote, 2836], 102 S.Ct. court a a Texas five-to-four high upheld, by which to run statute certain who wished required officials public state their office order legislature complete public current term which deemed as candidates. The court also upheld provision qualify office to con officeholder’s announcement of for another public candidacy an The opin stitute automatic from the current office. resignation plurality But as the dissent ion utilized an rational basis test. extremely deferential out, . mode “a of the Court . . pointed majority rejected] plurality’s analysis.” (Id., fn. equal protection 524] Brennan, (dis. J.).) opn. standards in in the choice and seeming inconsistency application has which focuses
this area led some commentators to advocate an analysis First directly infringe more on the extent to which election regulations Note, (See, Late Than Nev- and Fourteenth Amendment Better rights. e.g., *9 er: The John Anderson Cases and the Constitutionality Deadlines Filing 691, 700, Hofstra L.Rev. Constitutionality 703-704 [hereafter Deadlines]; Note, Filing State Restrictions on Elec- see Municipal generally tions: An Equal Protection Analysis 1507.) Harv.L.Rev. the United
Recently,
States
a
Court utilized
First Amendment
Supreme
balancing
in
analysis
a constitutional
to an
evaluating
challenge
election
law. In Anderson
been most approached had “a ‘real and'appre at issue [] when the classification has been applied of the electoral pro and integrity fairness ciable impact’ equality, 670; Grubb, Choudhry v. accord 14 Cal.3d (Gould v. supra, cess.” 438].) The 654, 552 P.2d 660, Cal.Rptr. Cal.3d 664 (1976) Free 17 involves such a burden election scheme determination as to when an imposes under the are examined the same factors which of of weighing many Here, too, an in Anderson. Court utilized by Supreme test balancing of and Four First infringement which concentrates on directly approach the real issues. focuses the on inquiry teenth Amendment rights Amend cases, on the First California courts have relied directly some (See, Schuster v. e.g., restrictions. ment to strike down election-related (1980) Cal.Rptr. 892-895 Cal.App.3d 447] Court Municipal literature]; Panish v. on anonymous campaign [prohibition political Loza Cal.Rptr. [prohibition 824-826 Cal.App.3d 596] in voter’s statements pamph to other candidates candidates’ references let]; & City Berkeley Cal.App.3d Gas Electric Co. v. Pacific of con campaign ordinance [city prohibiting 126-129 350] by tributions organizations].) are ame- voting equally
The issues San ban On write-in posed by Diego’s Amendment of argument The essence analysis. petitioners’ nable to a First voting is a ban on write-in on fundamental voting infringes directly one’s choice and the rights to vote for the candidate of rights. right both voters and potential association and expression political Amendment, are affected. the First to the franchise Rights relating implicate in the most “with its that an individual be allowed guarantee participate of our social that determine the contours communicative processes Law, (Tribe, American Constitutional thought.” 737.) then, It ban on write-in to examine San preferable, Diego’s to the used in Anderson.8 according analysis justifications for rights, and the state’s on First and Fourteenth Amendment burdens scrutiny equal pro- burdens, rigorous than strict necessarily any less imposing those is not analysis. analysis than would be undertaken always require rigorous tection It will a more using protection test. equal the deferential rational basis “analyt appropriate concluded that Anderson established 8Several federal courts have (Smith Election Com’rs regulations. v. Bd. for evaluation of election
ical framework” 1146; 1136, 1140, (N.D.Ill. 1984) Blomquist see also City Chicago fn. F.Supp. 1983) 527; (5th (10th 1984) 717 F.2d Brown Cir. v. Thomson Cir. 739 F.2d Dart v. 59, 61; 1491, 1503-1504; (2d 1983) 707 F.2d Stoddard Unity Party Wallace Cir. (D.S.D. 303; Dakota Kundert Quinn, Party South F.Supp. p.at Libertarian 1984) 735, 738, F.Supp fn. Petitioners assert that San Diego’s on write-in prohibition affects two important One is the rights. of candidates to pursue public other, office. The and more fundamental right, is that of the voters to cast their ballots for the candidates of their choice. Both are constitu rights tional dimension. Both are curtailed a ban on write-in voting.
There has been some in the suggestion case law that a candidate for office public not be (John fundamental in and of itself. Hamilton, son v. 466; 15 Cal.3d v. Eu Fridley *11 100, 104 Cal.App.3d on American Cal.Rptr. relying Party [182 232] [both White, Texas v. supra, 415 U.S. at fn. 11 L.Ed.2d at p. p. [39 760] of and Bullock v. Carter (1972) 405 U.S. 142-144 L.Ed.2d 99- [31 However, 849].) 92 S.Ct. this court has described the to hold right “valuable, public office as fundamental and one that is to First subject Hamilton, Amendment . (Johnson . . .” protection v. 15 Cal.3d at supra, 468; accord p. v. Zeilenga Nelson 4 Cal.3d 723 Cal.Rptr. [94 602, 484 578].) P.2d “
It has also been recognized that
‘the
of
rights
voters and the
rights
candidates do not lend themselves to neat
laws that affect can
separation;
’ ”
didates always
theoretical,
have at least some
correlative effect on voters.
(Anderson, supra,
556],
There is no (Gould that the to vote “fundamental.” question right Grubb, 670; supra, Cal.3d at Fullerton Joint Union School p. High Education, Dist. v. State 799; Bd. Castro v. Cal.3d at State p. California, 234; Cal.3d at Libertarian v. Eu Party p. of Cal.App.3d “ 470, 888].) ‘No is more right precious a free than country that of a voice in who make the election of those having which, citizens, the laws under even good rights, we must live. Other ” (Castro basic, undermined.’ to vote is the most are if illusory right 2 Cal.3d at California, supra, State but these two separate affects
San ban on Diego’s and suffrage” the public’s to “seek related of candidates rights—the right their the candidates ballots for of San voters cast Diego magnitude of sufficient choice. Both these are rights Amendments and Fourteenth warrant the of the First protection I, Const., art. (see Cal. state Constitution of our provisions comparable then, magni the “character 2).9 to examine It is necessary, § San rights imposed tude of the to those fundamental asserted injury” (Anderson, ban on write-in voting. Diego’s does candidacy appreciably that the ban on write-in
Respondents argue reasonable, are there affect candidate’s to seek office because public However, for the ballot. alternative methods to nondiscriminatory, qualify *12 Those this on respondents rely. case is from the cases which distinguishable the on as a candidate cases address restrictions on the to be listed right held to justify ballot. The which have been printed interests governmental such restrictions are not to write-in candidacy. applicable are where they “generally
Ballot access restrictions have been sustained
788,
Anderson,
fn.
and
460 U.S. at
(see
p.
applicable
supra,
evenhanded”
of
L.Ed.2d
other means
therein)
9
at
cited
or where
and cases
p.
[75
557]
Brown,
415
the
v.
(see
supra,
access to
ballot are
Storer
readily available
However,
have
courts which
U.S. at
733
at
the
725]).10
L.Ed.2d
p.
p.
[39
totally
are not
such
have
noted that candidates
upheld
uniformly
restrictions
votes,
have the
always
option
from
because
precluded
they
soliciting
Brown,
415
v.
(See,
supra,
Storer
conducting
e.g.,
campaign.
(1971) 403
736,
727];
Fortson
U.S. at
fn. 7
v.
p.
L.Ed.2d at
Jenness
p.
[39
Wal-
431,
554, 558,
1970];
v.
Unity Party
U.S.
434
L.Ed.2d
91 S.Ct.
[29
Eu,
59, 62;
131
(2nd
1983)
Fridley
supra,
Cal.App.3d
lace
Cir.
707
v.
F.2d
9Indeed,
First Amendment
protective provision
than the
more definitive and inclusive
“[a]
speech
press.”
and
guarantee
of free
is contained
our state
constitutional
116];
(Wilson
532
Superior
Cal.Rptr.
P.2d
v.
Court
13 Cal.3d
658 [119
Panish,
supra,
p.
accord
v.
at
Cal.App.3d
102
Loza
ownership
imposed property
have
which
10Courts
invalidated ballot access restrictions
(Bul
Free,
669),
filing fees
prohibitory
requirements (Choudhry
supra,
p.
v.
at
17 Cal.3d
Carter,
100-103];
v.
Knoll
pp.
at
supra,
pp.
lock v.
405
at
144-149
L.Ed.2d
[31
U.S.
long
1273]), unreasonably
P.2d
Cal.Rptr.
Davidson
Cal.3d
525
12
349 [116
472;
Hamilton,
Thompson
(Johnson
p.
residency requirements
supra,
at Kellam v. Eu Cal.App.3d In the which cases have the on upheld constitutionality restrictions access, ballot the courts have that the has state an repeatedly emphasized interest in reason, the limiting size and of the ballot. For this complexity before ballot, candidate can have his or her name on the printed government may require candidate to make a showing preliminary substantial (Anderson, 788-789, fn. support. supra, 460 U.S. at pp. Eu, L.Ed.2d 557]; Kellam v. 468-469.) Cal.App.3d Other requirements, deadline, such aas reasonably early are filing necessary for layout However, orderly ballot. Broth printing petitioner did erton not seek to have his name election ballot. printed He sought only allowed to solicit write-ins on election opportunity day.1
San Diego’s ban write-in does more serious injury to vote. As Justice in a in Wil Douglas concurring noted opinion Rhodes, liams v. “I would think that a State leeway has little precious making it or difficult for citizens to impossible they vote whomsoever . . . .” please (393 36], (cone. U.S. at opn. at p. Douglas, J.).)
Similarly, this court has announced that of a dem- fundamental goal “[a] ocratic tois attain free society of the voters’ choice expression pure *13 end, of candidates. To that our state and federal Constitutions mandate that must, government the if that adulterate possible, any avoid feature might or, indeed, frustrate, Grubb, (Gould that free and choice .” . . . v. pure 14 supra, 677; Cal.3d at see p. (1920) also Cohn v. Isensee 45 Cal.App. 531, 539 279], P. in v. 61 disapproved part in Binns Hite 107, 323, Cal.2d P.2d
The ban on write-in
the
ways.
affects
vote in two
right
First, it may very well
the candidate
the
of
prevent
by
majority
preferred
voters from winning
This
in
such
election.
is
situations
likely
especially
1 1It has been recognized
severely
that
already
disadvantaged
a write-in
relative
candidate
to candidates who
rely
are listed on
ballot.
“To force a candidate
on write-ins is to
elected,
disability.
burden him with
get
It
it
makes more
for him to
and for the
difficult
Rhodes,
(Williams
voters
elect
p.
him.”
at
supra,
p.
Second, for their pre from ballots casting individual voters prevents win candidates, chance of any or have ferred whether not those candidates his exercise effectively election. “A write-in ballot voter ning permits write-in ballots use of individual franchise. The constitutionally protected chance of success.” does not and should not on the candidate’s depend[] [] 1968) Labor (Socialist Party (S.D.Ohio F.Supp. Rhodes Rhodes, nom., U.S. mod. in sub. Williams v. affd. part, part added.)12 italics views, are not will or There be voters whose interests always priorities While on ballot. any way candidates represented appearing of who have little chance do voters’ these views represent success, be given it is in a diversity free important society political expression.
San election Diego’s prohibition prevents voters from “the choice free and exercising pure expression [their] Grubb, (Gould “effec 677), candidates” thereby 14 Cal.3d at a form of to our democratic tively silencing process.” dissent essential (Con Deadlines, 11 Hofstra L.Rev. stitutionality Filing 722). “To a voter to whose names appear restrict those candidates only his on the ballot denies him affirmative method arguably any expressing He choice: he must dissatisfaction with the listed candidates. faces one candidates, select he deems unworthy, either from a all whom group (Batey, Right vote at to Write-in or not all.” Electoral Graffiti: 201, 203.) 5 Nova L.J. to an individual evidently mindful of
Respondents, importance choice, that voter “is to vote for candidate her of his or respond *14 to he not forced vote for someone listed on the ballot. If writes-in [szc] candidate, is He will be if the name did appear. ballot counted as not denied to his feelings.” opportunity express however, effect, is to
A without right feelings” legal “express [one’s] The Amend- to to vote. First right antithetical the fundamental nature is ment to If public expression. expression guarantees right political Fees, many ways is an supra, right to vote Qualifying page 12See also at 120 [“the par bolstering his sense right fortifying dignity individual of a citizen and ticipation”]. so it, muffled effectively that no one hear is a hollow can this guarantee “ one. context, As this court has said in a different is more slightly ‘[t]here to the right to vote than the to mark a and it in a right piece paper drop box or to right lever in a booth. ... It also includes the pull [the] to have the right vote counted full at value without dilution or discount.’” Grubb, (Gould fn. an Cal.3d at down p. [striking election which regulation the names of incumbents first on the bal placed lot], 834, 838, South v. quoting (1950) Peters 339 U.S. L.Ed. (dis. S.Ct. J.).) opn. Douglas, 641] noted,
theAs
Georgia
Court has
refusal to count
elec-
Supreme
[an
“[a]
vote completely ignores it and is tantamount to a refusal to allow him
tor’s]
to cast it.”
(Thompson
(1967)
v. Willson
Respondents is a candidate from necessary prevent him/herself into the “thrust[ing] or voting fray any inoppor- opportune tune moment to do violence and to the chosen damage City’s system.” claim Specifically, they that the ordinance that to assure necessary candidates meet charter (2) candidates have a will- qualifications, displayed serve, (3) the ingness will have time and public adequate investigate abilities, credentials, evaluate the candidate’s for experience, capacity office, the candidate elected will receive a of the votes. majority also claim that Respondents would the scheme for disrupt election of the city council. it should be
Preliminarily, observed that the broad contention city’s a candidate him- may thrust or herself into the at an time fray inappropriate can be recharacterized. An individual with one or satisfied may initially more of the candidates who have on the ballot. As qualified placement “ however, the election season . . . can progresses, ‘unforeseen occurrences affect fundamentally (Anderson, all political expectations.’” Bickel, U.S. at fn. 11 559], L.Ed.2d at Reform and quoting Continuity
If the candidate who has an interests and views individual’s represented is forced to withdraw from the his or her or is alters campaign, positions become felonies, to feel may compelled indicted for that individual alleged to the violence” “doing void. Rather than a candidate in order to fill the flexi- a candidacy provides election of write-in availability process, ensure may and help deal with unforeseen bility developments to day. are on election that the voters given meaningful options of the prohibition to the advanced support Turning specific justifications con- they that on for of discussion write-in and voting assuming purposes interests, the drastic is that none warrants stitute state it clear compelling write-in Quite ban on method achieve ends. a total simply, selected to its In order to goals. is a overbroad means achieve stated voting grossly respon- and voting, warrant the fundamental burdening rights candidacy to a pro- dents are alternatives must demonstrate there no less drastic Pol. (See hibition Fed. Com’n v. Nat. Conserv. on write-in Election voting. — 472-473, Action 105 S.Ct. U.S. L.Ed.2d 1471].)13 to assure that can that a ban on write-in
Respondents voting assert helps serve.14 didates meet charter a willingness qualifications display However, a write- These a legitimate goals. complete prohibition ” “ at is too ‘crude and candidacy imprecise’ election far Hamilton, 469) meet those (Johnson v. a device to supra, 15 Cal.3d at p. objectives. has weeded
“Whatever candidates the scheme spurious frivolous [] out, serious, candidacy.” (McCarthy also an end has to a put legitimate 799, 803.) (D.R.I. 1976) v. Noel write-in Allowing F.Supp.
does not mean that a candidate who meet other charter qualifications cannot disqualified will be allowed to take office. But such candidate should be attempt he or not To because she does meet these other requirements. is grossly
eliminate write-in unqualified banning that purp It means to achieve certainly overinclusive. least drastic ose.15 13Itis of whether less drastic balancing requires clear that the Anderson test consideration (Anderson, supra, governmental alternatives are to achieve the interests at stake. available 558]; City at v. Bd. Election Com’rs U.S. at Smith 1146, 1150; Chicago, Party Dakota v. F.Supp. South pp. Libertarian Kundert, 739-740.) F.Supp. registered as a qualifications 30-day residency requirement and status 14Charter include a (San Code, 27.2023.) Diego
voter. Mun. § requires prospective write-in can Diego Municipal 15Section 27.3205 of the San Code candidacy which con primary didate in the election to file a “declaration and affidavit” addition, section qualifications tains for office. relating information candidate’s residency requirements for must meet the usual provides 22.3204 that a candidate sought. the office *16 720
Similarly, it seems unlikely that a who candidate is to serve unwilling will receive the number of requisite votes to win the election. A ban on write-in voting may ballots from prevent cast for candi- being unwilling dates, but it will also prevent serious, voters from ballots for casting legit- imate candidates who are not listed on the ballot. that
Respondents the ban on argue write-in assures that the public will have time to adequate investigate a candidate’s This ar qualifications. gument has some merit. “The that potential exists a late entry candidate will circumvent the intended months high before exposure Eu, primary” (Fridley v. supra, 105) at and Cal.App.3d p. presumably before the general election. But once a total ban on write-in again candidates is an overinclusive method to (See address this concern. Johnson v. Ham ilton, Cal.3d at p.
Unquestionably, has an city and in voter legitimate interest “important (Anderson, education.” 562].) at U.S. L.Ed.2d at p. 796 [75 However, the voters’ choice en limiting of candidates to who have those tered the contest over five months before the election is not neces “ sary communications, to further that interest. given ‘Given modern and the clear indication that and voter education occur campaign spending large ly during month before an (id., election’” L.Ed.2d at 563], Dunn v. Blumstein quoting L.Ed.2d 293]), cutoff some unnecessary impose a date five months before the general election.
Further, it is an unlikely unknown candidate will win election. As the said, United States Court Supreme has “as a matter of practical politics, the electoral process contains its own cure for voters’ ignorance about a candidate. Unknown particular large do win simply (Anderson, 798-799, numbers of votes.” supra, 460 U.S. at fn. 25 pp. L.Ed.2d at p.
More importantly, electorate for the may heavy early pay price restriction the selection of When are estab- candidates. the alternatives election, lished five months before the both voters and candidates are limited in their possible responses conditions. Since voters changing ballot, are forbidden to their cast ballots for the voters’ anyone not associate and in a in the discussion of the issues participate fully Anderson, last months before the (See election be limited.
U.S. at 556-557].) 787-788 fn. pp. education,
Rather than to voter on write-in contributing prohibition voting may serve to stifle the often leads debate which open vigorous *17 “ issues of public to a of the ‘Discussion understanding better issues. of the the operation are integral
debate on the of candidates qualifications The Amend- First our Constitution. system government by established in order to such expression ment affords broadest protection political about of bringing for the “to unfettered ideas interchange assure [the] . . This no . and social desired changes people.” [Citation.] that commitment the principle more than reflects our national “profound robust, uninhibited, and wide-open debate on issues be should public Action, 470 Pol. (Fed. . . . Election v. Nat. Conserv. Com’n — 1467], Buckley 105 S.Ct. at quoting U.S. at L.Ed.2d at p. p. p. [84 612]; 659, 685, see S.Ct. L.Ed.2d Valeo [46 887, 892 also Schuster v. Court Municipal Cal.App.3d free discussion to protect First Amendment exists Cal.Rptr. 447] [“The more affairs is [citation], for concerning affairs governmental ‘speech public (italics omit- than it is the essence of self-expression; self-government.’ ”] sum, ted).) of its ability Diego’s enhancing San “claim that of in- flow restricting to make wise decisions citizenry by [effectively] (Anderson, su- formation to them must be viewed with some skepticism.” 564].) 460 U.S. at at pra, L.Ed.2d p. p. elections
Write-in in in all federal and state is allowed California voting 7300-7313, Code, (Elec. and in local elections in noncharter cities. §§ 17100-17102.) provide express- It seems that the would unlikely Legislature an uned- if candidacies and ly danger such of frivolous procedures believe ucated a is no reason to electorate were There significant problem. elections these concerns in any Diego municipal San pose greater danger than do in other the state. they elections throughout wins an a successful candidate assert interest that
Respondents insuring a United States Supreme of the vote in the election. The majority Rhodes, “Ohio Court addressed a similar in Williams argument ballot, that no it is possible that if three or are on the [argues] more parties been vote, have might one would of the and the runner-up obtain party 50% Concededly, to the voters. winner a preferred by majority plurality winner that the election the State does have an to see interest attempting L.Ed.2d (393 U.S. at p. choice of a of its voters.” majority however, im- held, the restrictions 32].) at court considering this state rights, the Ohio and associational posed by scheme (Ibid.)16 for those restrictions. interest insufficient provided justification nominating required signatures on a party prohibitive 16Ohio a new to obtain number ballot, signatures that the petition position required further in order obtain a (See Williams previously parties. of other persons be from who had not voted for candidates Rhodes, fn. U.S. course, Of respondents’ asserted was irrelevant to the justification city’s former prohibition write-in at the election. The primary primary ballot typically lists numerous candidates. There is no that the guarantee top two vote-getters who advance to the general election will be the choice of majority voters. If a candidate receives a in the majority primary, *18 elected, he or she is and no general (San election is necessary. Chart- Diego er, §
Respondents’ interest is also insufficient to the restriction justify imposed on the fundamental to vote in the right election. It is commonplace for election federal, victories to togo winners at the and local plurality state levels. The extent to which a vote for a candidate minority affect the may distribution of votes between major candidates is a consideration which a voter should and will take into account.
It is not the province of the city to the of the to vote electors deprive for the candidate of their choice in a effort to assure that one paternalistic candidate receives a It is majority. also artificial to fashion a voting majority by forcing voters to cast their ballots for one of two candidates neither of whom they may deem to be The risk that a candidate who is not worthy. preferred aby of the majority voters will be elected is out- manifestly the weighed by Indeed, need to the protect fundamental to vote. it is possible that the ban on write-in in this case have voting prevented election of a candidate who enjoyed of the of San support majority voters. Diego’s also down the
Respondents argue striking prohibi tion on write-in would voting wreak havoc with their scheme for council city elections. scheme, Under that a is held each of primary eight districts. The two candidates who receive the most votes from each district then run city-wide in the general election. council members are thus Eight elected, district, one from each but are elected voters from they by through out the city. election, write-in Allowing votes or candidates in the city-wide respondents argue, would a candidate to be elected who had no permit sup in the port district he or she was As a primarily represent. hypothetical example, respondents that a white racist candidate win elec suggest might tion in the city-wide voting a black district in which represent primarily that candidate was extremely unpopular. 17Respondents first raised point argument Although “appel this at oral before this court. late ordinarily courts will not appealf,] consider . . matters raised the first time . whether the rule shall applied largely be question appellate court’s discretion.” (Bayside 431], Timber Co. v. Supervisors Board Cal.App.3d 5 [97 omitted.)
italics Since point aspect is but one the larger question, constitutional matter will be opinion. addressed in this course, would, scenario respondents worst case described elec- councilmanic city’s to the nature attributable primarily at-large That scheme itself, voting. of write-in availability tion scheme not to the voters choice of district veto the first already allows the voters to city’s correct, are city who them on the council. Respondents shall represent most exacerbate the however, might that the of write-in availability current scheme. objectionable aspect and a
However, flexibility provide would also allowing occur in which valve deal unforeseen safety developments with The avail- election. the five and the general months between primary aof candidate the election ability of write-in candidate also might prevent candidate when the favored who ran a distant second in the district primary, *19 addition, availability the has been to the election. In forced withdraw from an opportunity of a write-in voters who hold dissenting opinions provides ante, re- 715-717.) (See again, their Once express preferences. in the on voting have not that a total ban write-in demonstrated spondents election is to achieve the general necessary city’s purposes. of in the
If San
results
dilution
system
councilmanic election
Diego’s
candidates, it
vote,
voters or
minority
or discrimination
minority
against
2,
will be
Act of
section
subject
Rights
attack under the Voting
amended, 42
At this stage,
United
section
States Code Annotated
1973.18
argu-
the record contains
speculative
no evidence of abuse. Respondents’
do
voting
ments about the
write-in
allowing
of
possible consequences
demonstrate
this case does
justify
the
to vote. The record in
burdening
right
discrim-
write-in
If
voting.
the detrimental
of a
on
consequences
prohibition
occurs,
councilmanic
ination or
have to revise its
abuse
San Diego may
statutory requirements.19
election scheme to
satisfy constitutional
in the dilution
voting
which results
prohibits
18Section
in
scheme
as amended
scheme also
minority
purposeful,
the
vote. If
the vote
found to be
dilution of
is
(See
v.
Mobile
violates the 14th and
to the
Constitution.
15th Amendments
United States
Abilene,
City
1490]; Velasquez v.
Bolden
The determination that San is un- Diego’s on write-in prohibition constitutional is supported by decisions other A limited jurisdictions. number courts have examined the status of write-in under the federal Constitution. The most was undertaken comprehensive analysis Rhodes, the federal district court in Socialist Labor Party case, 983. In that F.Supp. an which court was faced with Ohio statute provided voting was elections prohibited except offices for which no candidates been had nominated. The Socialist Labor an Party sought order the state requiring provide space presi- dential election ballot for write-in votes.20 claims, addressing plaintiff’s the district court reviewed Supreme
Court which precedent had the fundamental nature of the emphasized right (Socialist to vote. Labor Party, 986-987.) at The supra, 290 F.Supp. pp. court noted that the specifically to vote included the ‘“to vote right for the freely candidate (id., 987), of one’s choice’” and at held that p. blanket prohibition “[a] the use of write-in ballots denies the against qual- ified electors of Ohio the right to in the electoral freely participate process as guaranteed the (.Ibid.)21 Constitution . . .” . In Elections, Kamins v. Board 1974) District Columbia (D.C.App. of of
324 A.2d
another court construed a federal election code provision
which
not
did
mention write-in
so
to
that
voting
permit
practice. “[W]e
do not believe Congress intended
valid votes to be
otherwise
disregarded
merely for the reason
a
that
time-honored method
political expression
had not been
the
mentioned in
statute nor
for
The
by regulation.
provided
fundamental nature of the
right involved
us that construction
persuades
plaintiffs
Party
20The
challenged
provisions
Socialist Labor
also
other
the
several
effectively prevented independent
parties
Ohio election laws which
from
gaining
(Socialist
985-986.)
Party, supra,
pp.
access to the ballot.
at
F.Supp.
Labor
Thus,
prohibition
the
on
voting
aspect
write-in
at issue in
but
of a much
the case was
one
ante,
(See
more
15.)
Diego.
restrictive scheme than is in effect in San
fn.
validity
prohibition
21The
voting
on write-in
was
the United States
appealed
not
to
Rhodes,
Supreme
high
Court. In Williams v.
other
court invalidated
restrictive
provisions
Ohio’s election scheme.
must follow
which we
favor
is the course
the statute in
of the franchise
since there is
no
compelling
reason
to do otherwise.
...
[1]
‘A write-in
individually constitutionally
exercise his
ballot
a voter to
permits
effectively
”
192-194.)
(Id.,
franchise.’
at pp.
protected
Willson,
the Georgia Supreme
Thompson
155 S.E.2d
voting.
write-in
down
which
statutory
Court struck
a
provision
prohibited
of candidates
the names
getting
matter what
procedure
required
“[N]o
write on the
ballot,
on the
has the unshackled
individual elector
for,
restricted to a
he
ballot
wishes
vote
can
any person
[szc]
(Id., at
choice
are
on
ballot.”
between those whose names
provided
Constitution,
404.)
Georgia
relied
on the
While
court
primarily
(Ibid.)22
also invoked the
of the federal Constitution.
protection
view. In
The
with this
limited California
on the issue accords
precedent
Isensee,
Cohn construed
the Court
Appeal
Cal.App.531,
for write-in
section of the
on the ballot
Political Code
require space
grounds.
in order to
of the statute on constitutional
voting
avoid invalidation
terms,
that are
in broad
. . . the ballots
court held
Speaking
“[i]f
wherein the
be used
blank space
at a recall election have no
required
on
voter
is not
write
of a
whose name
printed
name
person
ballot,
whose
or
the voter must be
to vote for the
compelled
person
persons
(D.Del. 1969)
which the court abstained
Wright
F.Supp.
22See
also
Richter
a pre
ruling
prohibition
from
in order to
validity
“avoid[]
of a
(Id.,
perhaps unnecessary
mature and
question.”
federal constitutional
issue, noting
states have
preferred
court
let
that most
to Delaware’s state courts address the
(Id.,
1347-1348.)
held such a
to be
ban
unconstitutional under their state constitutions.
prohibition
on write-in
Some
courts
held that
state
which have addressed the issue have
1979)
(Fla.
(See,
e.g.,
v. Smathers
contravenes their
Smith
state constitutions.
427;
Sup’rs
So.2d
see Board
Jackson v. Norris
Md. 579
A. 576] [but
*21
general
(1952)
474],
holding
v. Blunt
200
A.2d
in Jackson
restqricting
Md. 120 [88
518]; Littlejohn
People
v.
elections];
(1912)
v.
435
Lacombe
Laborde
132 La.
So.
[61
(1912)
159].)
were silent
which
In
947],
Binns v. Hite
Cohn v. supra, (Binns v. 61 Cal.2d supra, 531. Cal.App. However, at 112.) p. it noted that it . . . with an was “not confronted by the with a attempt Legislature to abolish write-in votes but rather statute the use of . regulating (Id., 111.) such votes . . .” at The court stressed p. the need to what otherwise be an simplify might “unduly long confusing ballot,” since the had only to which the section jurisdiction applied (Id., municipal judges. 112-113.)23 at pp.
Further, took effect if a write-in candidate did not file procedure only before the petition signed by days voters not less than registered election. The court concluded that of accom- necessity “[w]hen the com- plishing purposes underlying weighed against [the section] to have an in- paratively slight burdens electors who desire imposed upon vote, cumbent candidate that the to a write-in we are of the view subjected (Id., statute at is within the bounds of the . . . .” Legislature’s power 112; Hite, 106.) see also Barrett v. Eliminating 61 Cal.2d at p. “ ” ‘uncontested to contested from the ballot attention judgeships’ “direct[s] offices, confusion, of the ballot length [] avoid[s] [and] reduce[s] Hite, 106; (Barrett costs of . . . .” see elections 61 Cal.2d Hite, also Binns v. Cal.2d sufficiently These *22 potential significant. 23The for confusion is a amendment estab constitutional County, unopposed superior judges Angeles lished that the names of incumbent court in Los populous county, placed pamphlet the state’s most need not be the ballot. The ballot argument support previous in of the constitutional amendment noted that in a election “the judicial through voters were forced to search 65 uncontested elections in order to find the (Barrett three for which there was a contest.” v. Hite Cal.2d 106 offices Cal.Rptr. P.2d of local judicial in the context reasons to the limitations uphold compelling to vote. in of the on the elections burden imposed spite in the provision such in this case. Unlike No considerations special apply Binns, of an the problem the not to address San statute does Diego attempt Nor San Diego’s requirement and ballot. is overly long confusing comparable file five before election candidate over months the general the deadline Binns. forty-five-day in
Moreover, direct, ... is intentional “attempt San ordinance Diego’s Hite, 111), a situ (Binns at p. abolish write-in votes” v. 61 Cal.2d There, were interests ation confronted the court in Binns. the state’s by interests the the asserted weighed against burdens The court found imposed. the asserted interests {Id., burdens. When San justify Diego’s fundamental weighed rights, are the on the voters’ against imposed burdens voters’ the balance the rights. favor of tips overwhelmingly protecting III. The exercise right to seek and to the unrestricted public office the right First Amend- of the franchise are They by fundamental. are protected I, and San Diego’s ment article section 2 California Constitution. those on write-in exercise of restricts the prohibition voting impermissibly their for Not from ballots rights. only casting does ban voters prevent choice, of their too restrictive. it renders the election process The ban the election during stifle association and expression day. and on election season leave voters without meaningful options vot- court San on write-in Accordingly, this holds that Diego’s prohibition federal Consti- the state and ing general elections contravenes municipal tutions. writ, discharged, alternative served its having purpose, Workers America (United is denied. Farm writ
petition peremptory 902, 906, Court Cal.3d Superior Cal.Rptr. 914 [122 199, 203, 1237]; P.2d Brown 9 Cal.3d Ramirez Nelson, 1345]; P.2d Cal.3d Zeilenga 724.) Petitioners shall recover costs herein. Mosk, J., Broussard, Kaus, J., J.,* concurred.
GRODIN, J. reasoning majority I concurin the and in judgment elected individually to elections for and other mayor opinion pertains sitting assignment the Chair- Supreme *Retired Associate Justice of the Court under person of the Judicial Council. *23 officers. That is the only we are called to decide. I would question upon reserve judgment as to the of the write-in validity as it prohibition pertains to San Diego’s scheme for quasi-district council elections. Such elec- city tions may different pose (ante, issues 722-723), best resolved in a case in which they have been raised in the trial court and briefed on appeal. J.,
Reynoso, concurred.
LUCAS, J. dissent. I respectfully
The issue that the majority should have confronted is whether San Diego’s ban on write-in candidates and write-in “a has ‘real and appreciable impact’ upon equality, fairness and of the electoral integrity process. 660, (Choudhry (1976) Free 17 Cal.3d Cal.Rptr. [Citation.]” [131 654, 552 438].) P.2d Only with such regulations should impact subjected view, strict (Ibid.) In scrutiny. San my ordinance is nondiscrim- Diego’s inatory a de places minimis burden on the electoral process.
For a discussion of the or appropriate this equal protection analysis dinance, I adopt view the my of the Court of Fourth analysis Appeal, District, Appellate written by Justice Wiener con Acting Presiding curred in follows, Justice Work and Justice Butler. That with opinion appropriate additions and deletions:* with the begin that in our premise
[] form of government, right [I] vote is fundamental and essential. While the expressly protected by the United States Constitution Democratic (Rodriguez Popular Party (1982) 628, 635, 457 U.S. 2194]), L.Ed.2d 102 S.Ct. the United States Court has Supreme made clear “that a citizen has a con- repeatedly stitutionally protected with elections an basis participate equal ” other citizens in (Dunn the jurisdiction. v. Blumstein 405 U.S. 274, 280, 995].) L.Ed.2d 92 S.Ct. course,
Of the San ordinance Diego at issue here does not restrict directly anyone’s Rather, right to vote. the manner in which regulates persons Nonetheless, become candidates for elected offices. “the municipal of voters and the rights rights candidates do not lend themselves to neat theoretical, separation; laws that affect candidates have at least some always correlative (Bullock effect on voters.” Carter 92, 99, 849].) 92 S.Ct. It is thus not that this cor- surprising [], together, *Brackets this manner are used to opinion indicate deletions from the (other Appeal; enclosing citations) Court of parallel brackets material than the editor’s are, indicated, (Estate unless otherwise used to denote insertions or additions. McDill 14 Cal.3d 537 P.2d
729
Court
relation has
of United States Supreme
a series
figured prominently
which
restrictions
invalidating
cases
have
the strict
test in
applied
scrutiny
(See
on
Illinois Elec-
who
to be candidates for
office.
persons
sought
public
173,
tions Bd.
L.Ed.2d
(1979)
v. Socialist Workers
440 U.S.
184
Party
[59
230, 240,
709, 716
983];
(1974)
99 S.Ct.
Lubin v.
415 U.S.
Panish
[39
Carter,
702, 708,
1315];
L.Ed.2d
court reviewed a
elections.
fee
for candidates in Texas
filing
requirement
The choice-of-standard
follows:
every
was described as
problem
“[N]ot
limitation or
incidental burden on the exercise of
voting rights
subject
Election,
a stringent standard of review.
v.
McDonald
Board of
(1969).
802
Texas
exercise of the
does not
a condition
place
vote,
Rather,
nor
does
have been cast.
quantitatively dilute votes that
ballot,
Texas system creates
to the
barriers to candidate access
primary
thereby
to limit the
from which voters
tending
might
field of candidates
choose. The existence of
not of itself
close scru
such barriers does
compel
Fortson,
with
v.
tiny. Compare
(1971),
Jenness v.
Unfortunately, neither Bullock United States any Supreme nor subsequent Court affects case has “the to which a analyzed degree regulation particular 535, (Libertarian (1980) vote . . . .” v. Eu 28 Cal.3d Party Nonetheless, 612].) appellate 620 P.2d California Cal.Rptr. courts have in evalu the Bullock formulation generally attempted apply candidate to determine whether the ating challenged regulation restrictions has a “real and thus must on the electoral appreciable impact” process (See [, to strict Free 17 Cal.3d subjected Choudhry supra,] v. scrutiny. 660, 664; Fullerton Bd. Education Joint Union School Dist. State High 168]; Libertarian Cal.3d 654 P.2d Cal.Rptr. 888]; Fridley Party Eu Cal.App.3d Cal.Rptr. Eu As Cal.App.3d [we have] however, an ‘election every classification established explained, “[N]ot law’ need be to this ‘strict’ subjected innumerable election judicial scrutiny; have *25 provisions detailing may only mechanisms of election process minimal, vote, if effect on the fundamental to and classifications any, right of this nature may be under the ‘rational basis’ properly judged equal pro- (Gould tection v. Grubb (1975) 661, standard.” 14 Cal.3d 670 [122 377, see also Rittenband v. 1337]; 536 P.2d Cory 159 Cal.Rptr. 410, 421 Cal.App.3d 576].) Cal.Rptr. [205 the Bullock
Historically, California courts
have made liberal
test
applying
use of the strict
scrutiny standard
restrictions on
evaluating
candidacy.
Hamilton,
(E.g., Johnson v.
supra,
15
to
Cal.3d 461
candidate
(applied
Free,
residency requirements); Choudhry v.
supra,
We are faced with thus whether San determining Diego’s prohibition write-in impact” has a “real appreciable vote of the and on the fairness and integrity “equality, Free, electoral 17 Cal.3d at process.” (Choudhry so, do into doing recognize any that the facts of this not fall neatly case [I] of the hollows carved have decisions. all cases past Nearly prior *26 (Lib- considered restrictions which ballot denied “access to the altogether” Eu, ertarian v. or 543) Cal.3d at to some Party supra, 28 p. “significant” “identifiable of class” v. Mellon 9 potential (Thompson candidates. 96, 20, Cal.3d 628, 100 65 507 P.2d A.L.R.3d Cal.Rptr. (opn. 1029] Sullivan, of cf. J.); Bd. Fullerton Joint Union School Dist. v. State High of Education, 32 supra, Cal.3d at The of denied access group persons the by San Diego ordinance consists decide of those individuals who only initially to become but in the candidates who later interpret changes political climate have their of elected. find it improved being chances [I] difficult to characterize this as the of a systematic exclusion “significant” group.
Moreover,
to the extent there is an
such
are
excluded group,
persons
“identified” only by virtue of their
not to become a
conscious decision
candidate
by
normal
deadline. The
filing
waxing
of a
waning
poten-
tial
candidate’s
in an
system
enthusiasm
otherwise open political
can
hardly
equated with the less mutable
which have de-
characteristics
fined
Free,
the excluded
in
cases.
groups
Choudhry
supra,
v.
past
(Compare
Hamilton,
(defined
Libertarian Party Cal.App.3d sense, thus, nondiscrimi- real iation).) very is in system San Diego are if deadlines filing can become a candidate nature: natory Anyone with; not, to the same prohibition if are they everyone subject complied (1975) (See v. Layton Green a write-in candidate. against becoming 538 P.2d Cal.3d an the lack of holding
A recent case similar reasoning employed evaluat- test in of the rational basis impact justified application appreciable Eu, Cal.App.3d restriction. In ing candidacy Fridley by a state statute use of the write-in effectively process precluded The court a minor nomination in the party primary process.2 seeking party’s upon an impact concluded that the statute “does not have appreciable access all candidates to vote” because the scheme “afforded statutory (Id., nomination papers.’” to the ballot filing ‘simple expedient 756, 761.) (W.D.Wis. 1980) F.Supp. Blair v. Hebl quoting unavailable, means Thus, the alternate even if the were write-in procedure not signif- did ballot meant that the restriction statutory access obtaining *27 Panish, Lubin v. to voters. (Compare affect the choices available icantly Under such circumstan- 708].) L.Ed.2d at supra, p. at p. inter- ces, state the related to a “rationally legitimate statute need be only 104-105.) est.”3 (Fridley, pp. Cal.App.3d using be evaluated the scheme must determined that San Having Diego (see rubric two-tiered protection the more deferential branch of the equal Education, Bd. Dist. v. State High Fullerton Joint Union School generally must now evaluate the 798-799), governmental 32 Cal.3d at [I] against in of its total prohibition interests asserted San by Diego support write-in and write-in candidacy voting.[] order for a statutory that in Fridley requirement challenged 2The restriction in was ballot, general election placed his name primary write-in who wins a election to have general cast in the last the total number of votes percent he must have received at least 1 Party, won that Fridley, member of the Libertarian election for the office he seeks. Mr. ques The statute in assemblyman in the 22d District.
party’s primary for the office of state the total general election ballot because impossible appear tion on the made it for him to of the equal percent registered the 22d District did not number of Libertarian voters in assembly seat. previous general votes cast in the election for statutory impact of the Fridley that the minimal 3The court was correct in its conclusion test. rational basis justified application of the restriction on the available to voters choices Furthermore, write-in can assuring that a undoubtedly legitimate interest in the state has a primary appears no one merely advantage didate not of a situation where does take support (131 105), significant level of Cal.App.3d p. ballot but in fact demonstrates only (ibid.). Fridley questioned, it is can “among party’s that electorate” If the result in office at votes cast for that support—1 percent of all requirement gauge because the used to by possessed support general relationship to the amount the last election—has little Hebl, (level F.Supp. 756 supra, 498 party. (Compare within Blair v. write-in candidate his votes to number of primary election tied requirement candidates in support for write-in election).) general party’s gubernatorial in the last received candidate Where nonpartisan offices—such as those involved San munici Diego pal concerned, elections—are the clear election is to purpose primary narrow the field of candidates to two so that the winner of the general election is assured of having of a (Cf. of the voters. support majority Brown, Storer v. U.S. at 726].) L.Ed.2d at United States Supreme Court has this as a if recognized permissible significant Rhodes, governmental (Williams interest. supra, 393 U.S. at 32p. L.Ed.2d at Were write-in permitted election, the winner might receive less than 50 significantly percent vote.4 Accordingly, believe that San Diego’s [I] of write-in vot prohibition at the ing general election is related to reasonably a legitimate governmental interest. of Court of [] [End Appeal opinion.]
I would hold that San Diego’s prohibition in mu- against nicipal general elections is constitutional. *28 fact, 4In unsuccessful primary candidates at the simply election could continue their cam
paigns as write-ins at the election.