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Court of Appeal, Fourth District, Division 2, California.

LIBERTARIAN PARTY OF CALIFORNIA et al., Plaintiffs and Respondents, v. March FONG EU, as Secretary of State of the State of California, Defendant and Appellant.

Civ. 21101.

Decided: February 21, 1980

George Deukmejian, Atty. Gen., Richard D. Martland, Asst. Atty. Gen., Henry G. Ullerich and Christopher C. Foley, Deputy Attys. Gen., for defendant and appellant. Sills, Dougherty & Hendrickson and Ray Hendrickson, Newport Beach, for plaintiffs and respondents.

This is an appeal from a judgment of the Orange County Superior Court granting a peremptory writ of mandate commanding defendant March Fong Eu, Secretary of State, and the Registrars of Voters of Orange and San Diego Counties to certify respondents David Bergland and Jim Gallagher on the November 7, 1978, general election ballot and place their names on the ballot with the political party designation “Libertarian.”

The minute order granting the peremptory writ was entered on September 13, 1978. Because of the proximity of the election, the Secretary of State and the registrars complied with the order prior to the preparation of the findings of fact, conclusions of law and entry of judgment.

From the findings of fact subsequently entered, the following facts emerge:1

David Bergland, a candidate for the office of State Senator for the 36th Senatorial District, and Jim Gallagher, a candidate for the office of State Assemblyman for the 73d State Assembly District were nominated for the respective offices by the Libertarian Party of Orange County and the Libertarian Party of California. The nominations occurred at duly held meetings in Orange County in accordance with the by-laws of the Libertarian Party of Orange County and the State of California.

Bergland and Gallagher each qualified to have his name placed on the November 7, 1978, general election ballot pursuant to the “independent nomination procedure” set forth in California Elections Code section 6800 et seq. Specifically, each candidate met the requirements of California Elections Code section 6831 by submitting nomination papers for the respective offices they seek signed by voters in their respective districts in excess of three percent (3%) of the entire number of registered voters in their respective districts.

The nomination paper petition sections which were circulated and submitted to the registrar of voters by candidate Bergland contained the following:

“David Bergland is registered as, and is a member of, the Libertarian Party of California. He has been nominated for this office by the Libertarian Party of California and seeks to have his name identified on the ballot as a Libertarian Party Candidate.”

The nomination paper petition sections which were circulated and submitted to the Registrar of Voters by candidate Gallagher contained an identical statement about his candidacy.

The trial court found that the voters who signed the nomination petitions for the two candidates were adequately informed and notified that petitioners were representing the Libertarian Party and were not seeking their respective offices as independent candidates.

The court concluded that the candidates were entitled to have their names placed on the November 7, 1978, general election ballots as candidates for the respective offices with the political party designation “Libertarian.” Judgment was entered ordering the issuance of the writ of mandate and the writ was issued on January 5, 1979.

Although the Secretary of State and the Registrars of Voters had complied with the order of the trial court prior to entry of judgment and the issue was thus resolved as to these candidates, the Secretary of State has appealed, seeking resolution of the constitutional issues raised by the original petition for writ of mandate. If an action involves a matter of continuing public interest and the issue is likely to recur, the court may exercise an inherent discretion to resolve the issue even though circumstances arising during the pendency of the action would normally render the matter moot. (Johnson v. Hamilton (1975) 15 Cal.3d 461, 465, 125 Cal.Rptr. 129, 541 P.2d 881; In re William M. (1970) 3 Cal.3d 16, 23, 89 Cal.Rptr. 33, 473 P.2d 737.)

We agree with the parties herein that the issue of the validity of the system of candidate identification which underlies the dispute in this case transcends the importance of the political races which were concluded November 7, 1978. We therefore address the issue of the validity of candidate identification requirements of Elections Code section 10210.2

Section 10210 provides in pertinent part as follows:

“In the case of candidates for partisan office in a general election or in a special election to fill a vacancy in the office of Representative in Congress, State Senator, or Member of the Assembly, immediately to the right of and on the same line as the name of the candidate, or immediately below the name, if there is not sufficient space to the right of the name, there shall be printed . . . the name of the qualified political party with which the candidate is affiliated.

“. . .

“If for a general election any candidate has received the nomination of any additional party . . . the (name) shall be printed to the right of the name of the candidate's own party. . . . If a candidate has qualified for the ballot by virtue of an independent nomination, the word ‘Independent’ shall be printed instead of the name of a political party . . . .” (Emphasis added.)

Based upon this provision the Secretary of State refused to certify Bergland and Gallagher's designations on the ballot as “Libertarian,” and contends on appeal that there is no constitutional or statutory basis to support the order of the trial court compelling the inclusion of the name of a non-qualified political party on the ballot.

Plaintiffs contend that the section 10210 requirement that candidates who qualify by petition must be labeled “Independent” results in the denial of equal protection to candidates of non-qualified political parties and in the denial of due process to such candidates and to the voters who signed such candidates' nominating petitions.

The conclusions of law do not state a constitutional basis for the judgment. However, in view of the unequivocal language of the statute, it is clear that if the judgment is to be sustained, it must be on constitutional grounds.

The California Constitution confers upon the Legislature the power to provide for primary elections for partisan offices.3 Pursuant to such constitutional authority the Legislature enacted section 6430 of the Elections Code to provide for the qualification of parties to participate in primary elections.4

Percentage restrictions on the right of a political party to participate in primary elections have long been recognized as constitutionally permissible. (See Christian Nationalist Party v. Jordan (1957) 49 Cal.2d 448, 453, 318 P.2d 473.) In Katz v. Fitzgerald (1907) 152 Cal. 433, 93 P. 112 the California Supreme Court upheld the percentage restriction of former section 1361 of the California Political Code,5 stating at page 436, 93 P. at page 114 as follows: “Some classification is made necessary, else any two, three, or four men might call themselves a party and impose the burden of placing the names of their candidates upon the ballot provided by the state law a condition which could easily be made intolerable to the state as well as to the voter.”

Plaintiffs do not contend that section 6430 violates any provision of the federal or state Constitutions. They do not in this action question the qualification requirements for participation in the primary election. Rather, they argue that there is no compelling state interest justifying the section 10210 provision denying to candidates who qualify for the general election ballot by independent petition the right to have their party designation on the ballot.

The parties are in apparent agreement that the appropriate “level of scrutiny” or “standard of review” is that of “strict” judicial scrutiny. We agree.

In Socialist Workers Party v. March Fong Eu (9 Cir. 1978) 591 F.2d 1252, the court considered the identical question posed in the case at bench, and concluded that the “rational basis” test should apply. The court took the view that section 10210 did not impose a Substantial burden on voting rights, and that therefore no compelling state interest need be shown. The court's conclusion is based on the proposition that the term “Independent” as a term of art accurately describes the method of obtaining a position on the ballot. “ ‘Independent’ accurately explains the presence of the candidate's name on the ballot. That label, as applied to a candidate from a non-qualified party who has beliefs in common with a certain percentage of a district's registered voters, is no more misleading than the label ‘Democrat’ or ‘Republican’ when applied to a person who has won that party's primary but who has beliefs that differ substantially from those of the statewide party. In each case the appellation is a legitimate description indicating the reason a name is on the ballot. In the absence of other misleading conduct, such voter misinformation as might exist cannot be construed to be a substantial burden either on voting or associational rights. . . .

“. . .

“To the extent it exists, California's burden on fundamental rights is not substantial. It improperly burdens neither candidates nor parties. Its decision to indicate the method through which a candidate has come to appear on the ballot through the regulated statewide primary of a party or through an independent nomination procedure inflicts no substantial burden on candidates or their associational rights. . . . A state may rationally choose to have a statewide party qualification and regulation mechanism and to list on the ballot for the benefit of voters the method by which the candidate's place on the ballot was attained. It need not provide publicity to the candidate's party when his position on the ballot may be substantially attributable to the signatures of voters who are not members of his party.” (Id., at pp. 1261-1262.)

The court's analysis is flawed. While the state might properly choose to indicate the method by which a candidate has qualified for the ballot either through a regulated statewide primary of a party or by an independent nomination procedure it has not in fact done so here. It is a fiction to hold that the designation “Republican” or “Democrat” merely indicates that the candidate was chosen in a statewide primary. Clearly, the purpose of using the party name is to enable the voters to identify the candidates by their party (i. e., philosophical and ideological) associations. The state has chosen to provide publicity for the parties of some candidates; the refusal to treat minority non-qualified parties in the same manner does place a substantial burden on the ability of new parties to organize in the state.

While it is true that classification for purposes of purely mechanical details of the election process may have such minimal impact on the right to vote that the less restrictive “rational basis” standard may be applied (see McDonald v. Bd. of Election Com. of Chicago (1969) 394 U.S. 802, 806-809, 89 S.Ct. 1404, 1407-1409, 22 L.Ed.2d 739, 744-746), the stricter standard must be applied where the classification scheme has a “ ‘real and appreciable impact’ ” on the equality, fairness and integrity of the electoral process. (See Gould v. Grubb (1975) 14 Cal.3d 661, 670, 122 Cal.Rptr. 377, 536 P.2d 1337.)

The classification scheme at issue directly affects the electoral process. Both the United States Supreme Court and the California Supreme Court have held that the “ ‘fundamental’ nature of the right to vote and the importance of preserving the integrity of the franchise require that the judiciary give close scrutiny to laws imposing unequal burdens or granting unequal advantages in this realm.” (Gould v. Grubb, supra, 14 Cal.3d 661, 670, 122 Cal.Rptr. 377, 382, 536 P.2d 1337, 1342; see Kramer v. Union Free School Dist. (1969) 395 U.S. 621, 626, 89 S.Ct. 1886, 1889, 23 L.Ed.2d 583, 589; Knoll v. Davidson (1974) 12 Cal.3d 335, 345, 116 Cal.Rptr. 97, 525 P.2d 1273.)

In Gould, the California Supreme Court held the “incumbent first” and “alphabetical order” procedures for listing candidates constitutionally impermissible. The court stated, “In light of the trial court's finding that candidates in the top ballot position receive a substantial number of votes simply by virtue of their ballot position, a statute, ordinance or election practice which reserves such an advantage for a particular class of candidates inevitably dilutes the weight of the vote of all those electors who cast their ballots for a candidate who is not included within the favored class.” (Gould v. Grubb, supra, 14 Cal.3d 661, 670, 122 Cal.Rptr. 377, 383, 536 P.2d 1337, 1343.)

In the instant case, the trial court has made no factual finding on the effect of the absence of a political party designation or the use of the “Independent” designation required by section 10210. However, the very existence of political parties renders such a finding unnecessary. The obvious purpose of party designation is to permit voters to identify candidates by their party affiliation. When such designation is reserved for particular parties' candidates and denied to others', the procedure necessarily dilutes the weight of the vote of those electors who belong to the undesignated parties. Such vote may be even further diluted because of the required use of a designation that is ambiguous. “Independent” in the minds of many voters may not, as the Secretary of State suggests, simply mean one who is nominated by petition, but is more likely to be identified as one who has no party affiliation. This is particularly true since the candidates of qualified political parties who are nominated in the primary are permitted to use a party designation rather than a designation describing the manner of their selection, i. e., “Primary.”

Thus, we reject the suggestion in Socialist Workers Party v. March Fong Eu, supra, 591 F.2d 1252, 1260 that the identification of party associations and the elimination of voter misunderstanding are responsibilities solely of the candidates and voters, and that therefore the failure of the state to assume such responsibilities does not affect a “fundamental right.” While it might be arguable that the state need not take on such responsibilities in the first instance, once the state has in fact assumed responsibility to provide party designation information about certain parties' candidates, the failure to provide such information about other candidates or a state requirement that an ambiguous and misleading term be used for other candidates does affect the fundamental rights of the voters.

We conclude that the provisions of section 10210 can be upheld “only if the (appellant) can demonstrate that the classifications drawn are Necessary to achieve a Compelling governmental interest.” (Gould v. Grubb, supra, 14 Cal.3d 661, 672, 122 Cal.Rptr. 377, 384, 536 P.2d 1337, 1344; and see Thompson v. Mellon (1973) 9 Cal.3d 96, 102, 107 Cal.Rptr. 20, 507 P.2d 628; Dunn v. Blumstein (1972) 405 U.S. 330, 342, 92 S.Ct. 995, 1003, 31 L.Ed.2d 274, 284.)

In seeking to justify the classification, the Secretary of State focuses on the compelling state interest in regulating the number of candidates on the ballot. This compelling state interest surely justifies the Elections Code section 6430 requirements to qualify political parties to participate in the primary elections (see Christian Nationalist Party v. Jordan, supra, 49 Cal.2d 448, 453, 318 P.2d 473; Katz v. Fitzgerald, supra, 152 Cal. 433, 93 P. 112) and the Elections Code section 6831 provision for the independent nomination procedure. (See Storer v. Brown (1974) 415 U.S. 724, 738-746, 94 S.Ct. 1274, 1283-1287, 39 L.Ed.2d 714, 728-733, rehg. den. Sub nom., Frommhagen v. Brown, 417 U.S. 926, 94 S.Ct. 2635, 41 L.Ed.2d 230.) However, we fail to see how the section 10210 candidate designation requirements are necessary to effectuate the state's interest in limiting the number of candidates. The use of a party designation following a candidate's name will have no effect on either the procedure required to qualify a political party to participate in the primary or the independent nomination procedure.

The Secretary of State argues that in Storer v. Brown, supra, 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714, the United States Supreme Court specifically approved the California statutory division between partisan and nonpartisan candidates, and that the reasoning of the Storer court is applicable to the statutory “Independent” designation here in question. Not so. The Storer court considered the constitutionality of former sections 6830, subdivisions (c) and (d), 6831 and 68336 which were challenged as infringing on rights guaranteed by the First and Fourteenth Amendments and as adding qualifications for the office of United States Congress contrary to article 1, section 2, clause 2 of the United States Constitution. There the attack was upon the ballot qualification procedures of the aforesaid sections and not upon the candidate designation requirements of section 10210.

The candidate designation provision of section 10210 is not an essential part of the electoral procedure necessary to achieve the compelling governmental interest cited by the Secretary of State or set forth by the court in Storer.

In casting about for other governmental interests that may be served by the section 10210 requirements, we have considered two worthy of comment, to wit, (1) the governmental interest in preventing misrepresentation of a candidate's status as a nominee of a nonqualified party, and (2) the governmental interest in maintaining the stability of its political system by preventing unrestrained proliferation of parties. (See Storer v. Brown, supra, 415 U.S. 724, 735-736, 94 S.Ct. 1274, 1281-1282, 39 L.Ed.2d 714, 726-727.)

With respect to the state's interest in preventing misrepresentation, the Secretary of State has failed to demonstrate that “less drastic means” are not available to accomplish this goal. When state legislation burdens fundamental constitutional rights, as here, the state must affirmatively demonstrate the absence of less drastic means of achieving the state's objectives. (Dunn v. Blumstein, supra, 405 U.S. 330, 343, 92 S.Ct. 995, 1003, 31 L.Ed.2d 274, 285; Elections Bd. v. Socialist Workers Party (1979) 440 U.S. 173, 99 S.Ct. 983, 991, 59 L.Ed.2d 230, 242.)

The findings of fact include findings that (1) respondents were nominated by the Libertarian Party at duly held meetings in accordance with the party's bylaws, and (2) the voters who signed their nomination petitions were adequately informed that they represented the Libertarian Party. Verification by the Secretary of State of these facts would be no more onerous than verification of the petitions. Certainly a requirement that a candidate file such proof along with the nomination petition would be a less drastic means of satisfying the state's interest in preventing misrepresentation to, and confusion of, voters.

Moreover, it would actually eliminate confusion by eliminating the use of the ambiguous designation “Independent,” except for those who are truly independent; i. e., not identified with any political party whether qualified or nonqualified for purposes of the primary election.

The governmental interest in maintaining the stability of its political system by preventing unrestrained proliferation of parties is served by the percentage requirements for qualifying for the primary ballot and for qualifying for nomination by petition. (See Storer v. Brown, supra, 415 U.S. 724, 743, 94 S.Ct. 1274, 1285, 39 L.Ed.2d 714, 731.)

There is no evidence that splintering and factionalism of political parties will result from simply permitting duly nominated candidates of minority parties who are able to garner signatures of the necessary three percent of the registered voters in the appropriate district to appear on the ballot with the designation of the nonqualified party whose nomination they have obtained. By denying them the right to party designation enjoyed by candidates of the major political parties, the law discourages the growth of new political parties and burdens the rights of potential supporters and voters to associate for political purposes and to vote. (See Bullock v. Carter (1972) 405 U.S. 134, 143-144, 92 S.Ct. 849, 855-856, 31 L.Ed.2d 92, 99-100; Williams v. Rhodes (1968) 393 U.S. 23, 30-31, 89 S.Ct. 5, 10-11, 21 L.Ed.2d 24, 31-32.)

The state has no legitimate interest in preventing the emergence of new political parties. Rather, “A fundamental goal of a democratic society is to attain the free and pure expression of the voters' choice of candidates. To that end, our state and federal Constitutions mandate that the government must, if possible, avoid any feature that might adulterate or, indeed, frustrate, that free and pure choice; . . . In our governmental system, the voters' selection must remain untainted by extraneous artificial advantages imposed by weighted procedures of the election process.” (Gould v. Grubb, supra, 14 Cal.3d 661, 677, 122 Cal.Rptr. 377, 388, 536 P.2d 1337, 1348.)

We conclude that the provisions of Elections Code section 10210 which authorize the ballot designation of a candidate's party affiliation with a qualified political party and prohibits ballot designation of a candidate's party affiliation when the candidate qualifies for the ballot by petition are constitutionally impermissible as violative of the equal protection of the law.

The judgment is affirmed.

I dissent.

Once upon a time there existed a judicial philosophy known as judicial restraint. Under that philosophy the rule developed that a legislative act was presumed to be constitutional, unconstitutionality had to be clearly shown and all doubts resolved in favor of the validity of the legislation. The wisdom of legislation was of no concern to the courts. It was only when legislation clearly violated a specific constitutional provision that the courts would step in. Insofar as the principles of equal protection were concerned, the instrumentality used to implement this policy of judicial restraint was the so-called traditional approach by which a classification would be upheld if it bore a rational relationship to a legitimate state purpose.

Then a philosophy of judicial activism evolved. All of the above went out the window if the courts could find that the legislation involved a “fundamental interest.” Under these circumstances, the legislation had to be “closely scrutinized” and could be upheld only if it was necessary in the furtherance of a compelling state interest. The results were obvious. Under the rational relationship test, legislation was ordinarily upheld. Under the close scrutiny test, legislation was generally overturned. All the courts had to decide was whether the interest involved was fundamental or not and those decisions involved some mighty subjective determinations.

I quite agree with the majority that the right to vote is a fundamental interest. The right to vote and the right to express one's self freely are the two basic bulwarks of a democratic society. However, I do not concede that each and every section of the Elections Code receives the protective mantle of the close scrutiny test. There are many housekeeping provisions which deserve only the rational relationship review. As the majority point out, a classification for purposes of purely mechanical details of the election process may have such a minimal impact on the right to vote as to be subject to the rational relationship test, whereas, the stricter standard must be applied where the classification has a real and appreciable impact on the integrity of the electoral process. Again, we deal with some highly subjective distinctions.

Elections Code s 10210 is in a gray area. I'm inclined to think it deserves the rational relationship test but to avoid the undue consumption of time and space in a futile argument, I will go along with the majority and apply the strict scrutiny test.

Art. 2, sec. 5 of the California Constitution, confers on the Legislature the power to provide for primary elections. This power includes the judicially approved power to set standards which political parties must meet in order to qualify for participation in a primary election. (Christian Nationalist Party v. Jordan, 49 Cal.2d 448, 453, 318 P.2d 473.) So, too, the state has a compelling interest in seeing to it that those who qualify as independent candidates don't by indirection do that which they cannot do directly. This is exactly what the petitioners have done. Their party was not a qualified party. Nevertheless, they allow that party to take part in the electoral process by the simple expedient of having that party designation appear after the name of one nominated by the independent nomination process. Here, the order of the trial court has, under the guise of constitutional interpretation, established a new method for political groups to qualify for the ballot. A party which cannot qualify simply has its party members circulate independent nomination papers, modified to include a statement that the prospective candidate is actually seeking to appear on the ballot not as an independent but as a member of the political group. I think that the state has a compelling interest in limiting this abuse of electoral process. Therefore, I would reverse the trial court and rule that the Secretary of State was correct in refusing to certify petitioner with the affiliation of a non-qualified political body.1


1.  The Secretary of State does not contend that the evidence is insufficient to support the findings and has not requested that a reporter's transcript be filed with this court.

2.  All statutory references are to the Elections Code unless otherwise stated.

3.  California Constitution article 2, section 5, provides in pertinent part as follows:“The Legislature shall provide for primary elections for partisan offices, including an open presidential primary whereby the candidates on the ballot are those found by the Secretary of State to be recognized candidates throughout the nation or throughout California for the office of President of the United States, and those whose names are placed on the ballot by petition, but excluding any candidate who has withdrawn by filing an affidavit of noncandidacy.”

4.  Section 6430 provides as follows:“A party is qualified to participate in any primary election:“(a) If at the last preceding gubernatorial election there was polled for any one of its candidates for any office voted on throughout the state, at least 2 percent of the entire vote of the state; or“(b) If on or before the 135th day before any primary election, it appears to the Secretary of State, as a result of examining and totaling the statement of voters and their political affiliations transmitted to him by the county clerks, that voters equal in number to at least 1 percent of the entire vote of the state at the last preceding gubernatorial election have declared their intention to affiliate with that party; or“(c) If on or before the 135th day before any primary election, there is filed with the Secretary of State a petition signed by voters, equal in number to at least 10 percent of the entire vote of the state at the last preceding gubernatorial election, declaring that they represent a proposed party, the name of which shall be stated in the petition, which proposed party those voters desire to have participate in that primary election. This petition shall be circulated, signed, verified and the signatures of the voters on it shall be certified to and transmitted to the Secretary of State by the county clerks substantially as provided for initiative petitions. Each page of the petition shall bear a caption in 18-point blackface type, which caption shall be the name of the proposed party followed by the words ‘Petition to participate in the primary election.’ No voters or organization of voters shall assume a party name or designation which is so similar to the name of an existing party as to mislead voters.”

5.  Enacted by Statutes 1901, chapter 198, section 1, page 608. Elections Code sections 18200 to 18260, which were derived in part from former Political Code section 1361, were repealed by Statutes 1975, chapter 1203, section 8, page 2985. (See Historical Note, 29A West's Ann.Elec.Code (1977 ed.) ss 18200-18260, pp. 133-134.)

6.  These sections were repealed by Statutes 1976, chapter 1191, section 62, page 5422. Replacement sections 6830, 6831 and 6833 were enacted by Statutes 1976, chapter 1191, section 63, pages 5422-5425.

1.  Of course, this case is Really moot now. Not only is the election in question two years old, but according to recent stories in the press the Libertarian Party is now a qualified political party in this state. Libertarians no longer have to go through this sleight-of-hand process to get their party on the ballot. They are there legitimately.

MORRIS, Associate Justice.

TAMURA, J., concurs.

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