December 29, 2010
Ramona Ripston, Executive Director
ACLU of Southern California
1313 West Eighth St.
Los Angeles CA 90017
Matt Gonzalez, Esq.
Gonzalez & Leigh LLP
744 Montgomery St 5th Fl
San Francisco CA 94111
Dear Mr. Gonzalez and Ms. Ripston:
This letter is a request to enlist assistance in the filing of a lawsuit to overturn California’s filing fees to run for public office as applied as well as a new challenge to the facial constitutionality of the filing fee laws, especially in the wake of the implementation of Proposition 14, which jeopardizes the participation of “third parties” in the California electoral sphere.
The ACLU of Southern California supported the last major challenge to the filing fee laws which was initiated by the California Peace and Freedom Party.
For over a hundred years, people who believe that the right to run for office, and the right of people to vote for candidates of their choice, should not be restricted based upon the wealth of the candidates or their supporters. In 1909 the California Socialist Party lost the lawsuit Socialist Party vs. Uhl in its effort to do away with filing fees to run for public office in California in the State Supreme Court. Even though the Socialist Party lost that decision, the court held (Independent Progressive Party vs County Clerks, 1948, 31 C 2nd 549) that “”Throughout the court’s opinion in the Uhl case [Socialist Party v. Uhl, 155 Cal. 776 (103 P. 181)] it is emphasized that the power of the Legislature to restrict the right of suffrage is limited to prescribing tests and conditions for participation in primary elections which are reasonable and not arbitrary.” [Emphasis added].
In Haag vs California [not reported] the California Peace & Freedom Party challenged the filing fees again in 1970, with John Haag of Venice, candidate for Lieutenant Governor, as the lead Plaintiff. The State Supreme Court turned PFP down.
In 1972, PFP started a new effort with Blaine vs Brown (John Blaine of Mount Washington (LA 90065). Due to a federal court injunction in Choate vs. Brown, all of the legislative and congressional candidates in the suit were able to run that year without paying the filing fees, but that left Don Paul Lubin, a PFP candidate for the non-partisan County Supervisor seat held by Pete Schabarum, as the only candidate left, so the PFP suit morphed into Lubin vs. Panish.
In the trial court, the runner-up for the Democratic Party nomination for Lieutenant Governor in 1970, Judge Robert A. Wenke, made the not so veiled racist/sexist remark that “any welfare mother who can’t afford $200 to run for Assembly is obviously a frivolous candidate.” Neither Wenke nor then-Secretary of State Edmund G. “Jerry” Brown, Jr., the defendant in Blaine vs. Brown, revealed that Wenke was a campaign contributor to Brown of $200 and an airline ticket for the 1970 election. Wenke’s decision against PFP came about a week after the U.S. Supreme Court decided in Bullock vs Carter 7-0 (two justices abstaining) 405 US 134 (decided February 24, 1972) that Texas’s filing fees were unconstitutional even though you could get on the ballot as an independent without paying the fees or have your write-in votes counted without a filing fee. In California, neither of those options existed.
Don Lubin’s case went to the California Court of Appeals and the State Supreme Court to no avail. Not a single judge even wanted to hear the case. Related litigation for injunctions went before the U.S. District Court and the 9th Circuit Court of Appeals. Only 9th Circuit Justice Walter R. Ely Jr. saw the case for what it was, but was outvoted 2-1. When California Deputy Attorney General Henry G. Ullerich argued that filing fees dissuaded frivolous candidates from running for office, Ely inquired of him, “tell me counselor: how do these filing fees dissuade frivolous millionaires from running for office?” Ullerich had no answer.
With the case pending in the U.S. Supreme Court, we brought a new lawsuit, Jan B. Knaizansky-Tucker (and David Noble) vs Brown, which got an injunction from the 9th Circuit against the enforcement of the filing fees.
With a brief signed by the ACLU’s A.L. Wirin and Fred Okrand and signed and argued by Marguerite “Marge” Buckley and printed by Agency Lithograph with an Allied Printing Trades Union Label, nine justices of the Supreme Court decided 9-0 (nine to nothing) that California’s filing fees were facially unconstitutional in Lubin vs. Panish (1974) 415 U. S. 709. The following day, Jerry Brown threw five (5) candidates off the ballot for not paying the fees that had just been declared unconstitutional. In various proceedings including attempts to haveBrown declared in contempt of court over the 9th Circuit injunctions, the ACLU challenged Brown’s actions. In Donovan vs. Brown, (1974) 11 Cal.3d 571, the State Supreme Court ordered the counting of write-in votes without the payment of a filing fee for candidates who’d been refused the right to get on the ballot by Brown. Marge Buckley and the ACLU’s Fred Okrand represented the petitioners in that action.
Unfortunately, those candidates allowed to run as write-in candidates were prevented from “winning” in other related litigation due to the fact that the Elections Code requires more votes than those legally allowed to vote in most
third party primaries.
So, the legislature eventually enacted a new filing fee law that allows candidates to get more signatures to get on the ballot without a filing fee or a proration of fees by the number of signatures.
Fast forward to this past week. With new election rules for the passage of Proposition 14 by the voters, the way that things worked out for me attempting to file in the 28th State Senate and Carl Iannalfo trying to run in the 17th State Senate district for special elections, instead of the old requirement for PFP candidates of 10% or 150 signatures whichever is less, with months to get them, the rules became 3,000 signatures with 3 days to get them for me and 2 days to get them for Carl. This is both arbitrary and unreasonable and plainly in violation of the principles of Lubin v Panish and Socialist Party v Uhl.
There are additionally other challenges that can be made to the facial validity of the filing fee laws aside from the obvious unconstitutionality of how they have been applied.
First, California is violating the equal protection clause of Article I, Section 7 of the California Constitution by making it easy for wealthy candidates to get on the ballot and difficult for everybody else. Candidates who can afford to pay the fees can get on the ballot with 40 signatures for legislature and house of representatives and 65 signatures for statewide offices. The best comparison for how difficult it is for candidates who cannot afford to buy their way onto the ballot is the per signature cost at market rates to obtain petition signatures in California. Ballotopedia (http://ballotpedia.org/wiki/index.php/2010_ballot_measure_petition_signature
_costs) charts how the 2010 CPRS (cost per required signature) for ballot measures on the California ballot ranged from $1.61 to $5.23.
Assuming arguendo that the market value of the volunteer time (along with costs of gasoline and other transportation and clerical expenses) is represented by the lowest market cost for initiative signatures, $1.61, then the minimum 3,000 good signatures the state was requiring me (and Carl Iannalfo) to get in a matter of days comes to $4,830.00, nearly five times the actual filing fee for the office. To waive the filing fee, a person who is not rich, has a much harder burden in order to qualify for the ballot, which is not permissible on equal protection grounds.
If the goal of the state is to prevent the cluttering of ballots and eliminate frivolous candidates, then all candidates should share an equal burden for getting on the ballot and it should be no easier for frivolous yet opulent candidates than for frivolous working people or indigents. As Section 3511 of the California Civil Code prescribes (a maxim of jurisprudence), “Where the reason is the same, the rule should be the same.”
Second, Section 8106 of the Elections Code which governs filing fees for the relevant offices has been made hopelessly ambiguous by the passage of Proposition 14. The plain language of the statute makes it clear that it contemplates a filing fee for candidates seeking “nomination” of their political party. Since Proposition 14 has eliminated party nominations, it is not clear that candidates are even required to pay any filing fee since they are no long seeking party nominations.
Third, the abolition of party primaries renders the reasons for the filing fees, as consistently asserted by California when it has defended filing fee lawsuits in the past, moot. California argued that the filing fees prevented the cluttering of the primary ballot, by preventing frivolous candidates and candidates without substantial support from getting on the ballot. Of course, the filing fees have never dissuaded frivolous millionaires, as pointed out by Justice Ely, from running for office. But these fees were always fees to enter primary elections, not the general election. By adopting Proposition 14, California has intentionally created a cluttered primary ballot and limited participation in the general election to two candidates.
Section 3510 of the California Civil Code (a maxim of jurisprudence) is instructive here: “When the reason of a rule ceases, so should the rule itself.”
Fourth, assuming arguendo that the filing fee is facially constitutional, then as applied in the 28th and 17th State Senate elections, it is plainly unconstitutional. The precedents (supplied by Richard Winger, the well known and respected authority on the subject), include:
There are 4 more precedents that it is unconstitutional to give petitioning candidates and parties an unusually short time to collect signatures, or a period that is much shorter than the normal one. I already sent the Maryland and Georgia ones.
1. Wyoming. Blomquist v Thomsen, 739 F 2d 525 (10th circuit 1984). Because normal petitioning time was one year to get 8,000 signatures, and because state allowed only two months, the number of signatures had to be reduced to one-sixth of 8,000.
2. West Virginia. Nader 2000 Primary Committee v Hechler, 112 F Supp 2d 525 (SDWV 2000). Because state doubled number of signatures in middle of petitioning period, state could not implement the new higher number in 2000. Another reason for the decision was that state was unconstitutionally barring out-of-staters from helping collect. This is relevant to California also. In 2008 the 9th circuit struck down Arizona laws against out-of-state circulators in Nader v Brewer, 531 F 3d 1028, and California is in the 9th circuit, and continues to post on the Sec of State webpage that circulators must live in the district and the county in which they are working in. But when pressed, her office claims she doesn’t enforce that law.
3. Arizona. On Jan. 15, 2010, a US District Court said state couldn’t enforce the Feb. 2010 petition deadline for new party petitions against the Green Party, because that new earlier deadline had only been created a few months earlier. Not reported, Az Green Party v Bennett, cv09-2412-PHX-SRB.
4. Florida. On Aug. 7, 1989, a US District Court in the Northern District, Gainesville div, ruled because the normal petitioning time wasn’t available (because of late redistricting) the state had to proportionally reduce the number of signatures. Not reported, case no. 89-40168-MMP.
Mathers v Morris, 515 F Supp 931 (US Dist Ct Maryland 1981), affirmed, 649 F 2d 280 (4th circuit 1981).
There is also Swanson v Bennett, 219 F Supp 2d 1225 (Middle district Alabama 2002), which granted an injunction to two independent candidates because the state abruptly altered the petition deadline while they were working on their petitions, to an earlier date. See the part on page 1229.
Unreported decision, Citizens Party of Georgia v David Poythress, Secretary of State of the State of Georgia, 82-8411 (11th Circuit, 1982) on appeal from USDC, Northern District of Georgia, Atlanta Division, Case No. C82-1260A.
Thanking you for your prompt attention, I remain,
Jan B. Tucker