Jack CANAAN, et al., Petitioners, v. Charles G. ABDELNOUR, et al., Respondents.
The City of San Diego prohibits write-in candidacies and write-in voting at all municipal elections. William P. Brotherton wishes to be a write-in candidate for Mayor of San Diego and Jack Canaan would like to vote for a write-in mayoral candidate, presumably Brotherton. In this proceeding, they seek to challenge the write-in prohibition as a violation of the constitutional guarantee of equal protection. Because we conclude that the San Diego system represents a reasonable accommodation of competing interests, we deny the writ.
Section 27.2205 of the San Diego Municipal Code states: “No write-in candidates shall be permitted. A ballot containing the name of any person not printed on the official ballot shall be counted as if the name added did not appear.” San Diego held a primary municipal election on June 5, 1984 and has a general election scheduled for November 6, 1984. On April 20, 1984, Brotherton presented Charles G. Abdelnour, the San Diego City Clerk, with his petition to be a write-in mayoral candidate at the June 5 primary election. Abdelnour rejected Brotherton's petition based on San Diego's absolute prohibition of write-in candidacies.1 Brotherton and Canaan then began this proceeding.
The concept of write-in candidates and write-in voting is not an unusual phenomenon on the California political scene. Elections Code sections 7300–7313 and 17100–17102 provide a procedure whereby votes may be cast for write-in candidates in all federal, state and local elections in California except those for municipal offices in charter cities, such as San Diego. Under the California Constitution, charter cities are authorized to adopt regulations for the conduct of municipal elections irrespective of general laws on the same subject. (Cal. Const., art. XI, § 5, subds. (a), (b)(3) and (b)(4); Coffineau v. Eu (1977) 68 Cal.App.3d 138, 142, 144, 137 Cal.Rptr. 90.)
Relying on its power as a charter city, San Diego has sought to prohibit write-in candidacies and write-in voting in municipal elections. Under the San Diego statutory scheme, a candidate for a municipal office may file his nominating petition—and thus declare himself to be an official candidate—up to 88 days before the primary election.2 If no candidate wins a majority at the primary stage, the two candidates receiving the highest number of primary votes appear on the general election ballot with the winner being elected to the office. The effect of the San Diego system is that the prospective candidate must make his decision to seek elective office as long as eight months before the general election at which the position will be filled. If San Diego allowed write-in voting under the procedures utilized in most local and all state and federal elections in California, a write-in candidate could decide as late as 14 days before the general election to become a candidate. (See Elec.Code, § 7301.)
Focusing on these two classes of persons—one who make their decision to become candidates for municipal office more than eight months before the general election and a second who make such a decision after the eight month deadline—petitioners challenge the prohibition against write-in voting as violative of the equal protection guarantees of the Fourteenth Amendment. They point out that numerous events may occur during the eight-month period which make some or all of the previously declared candidates unacceptable to voters. Negative revelations regarding a declared candidate may lead groups of voters to seek out an alternate choice who was previously willing to defer to the declared candidate. (See generally Anderson v. Celebrezze (1983) 460 U.S. 780, ––––, 103 S.Ct. 1564, 1570, 75 L.Ed.2d 547.)
Petitioners assert that write-in voting provides a necessary safety valve in order that the political system may adjust to and compensate for the creation of a political void. Because write-in restrictions impact on the fundamental right to vote, petitioners contend they are subject to strict scrutiny under the Equal Protection Clause. They argue the absolute prohibition chosen by San Diego is not necessary to achieve a compelling state interest and, therefore, write-in voting must be allowed.
We begin with the premise that in our form of government, the right to vote is fundamental and essential. While the right is not expressly protected by the United States Constitution (Rodriguez v. Popular Democratic Party (1982) 457 U.S. 1, 9, 102 S.Ct. 2194, 2199, 72 L.Ed.2d 628), the United States Supreme Court has repeatedly made clear “that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.” (Dunn v. Blumstein (1972) 405 U.S. 330, 336, 92 S.Ct. 995, 999, 31 L.Ed.2d 274.)
Of course, the San Diego ordinance at issue here does not directly restrict anyone's right to vote. Rather, it regulates the manner in which persons may become candidates for elected municipal offices. Nonetheless, “the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters.” (Bullock v. Carter (1972) 405 U.S. 134, 143, 92 S.Ct. 849, 855, 31 L.Ed.2d 92.) It is thus not surprising that this correlation has figured prominently in a series of United States Supreme Court cases which have applied the strict scrutiny test in invalidating restrictions on persons who sought to be candidates for public office. (See Illinois Elections Bd. v. Socialist Workers Party (1979) 440 U.S. 173, 184, 99 S.Ct. 983, 990, 59 L.Ed.2d 230; Lubin v. Panish (1974) 415 U.S. 709, 716, 94 S.Ct. 1315, 1320, 39 L.Ed.2d 702; Bullock v. Carter, supra, 405 U.S. at pp. 142–144, 92 S.Ct. at 855–56; Williams v. Rhodes (1968) 393 U.S. 23, 31, 89 S.Ct. 5, 10, 21 L.Ed.2d 24; see also Johnson v. Hamilton (1975) 15 Cal.3d 461, 468–469, 125 Cal.Rptr. 129, 541 P.2d 881.)
That the court has viewed strict scrutiny as the appropriate standard to be applied in these cases is reasonably clear. What operative facts in each case trigger that standard is more opaque. In Bullock v. Carter, for instance, the court reviewed a filing fee requirement for candidates in Texas elections. The choice-of-standard problem was described as follows:
“[N]ot every limitation or incidental burden on the exercise of voting rights is subject to a stringent standard of review. McDonald v. Board of Election, 394 U.S. 802 [89 S.Ct. 1404, 22 L.Ed.2d 739] (1969). Texas does not place a condition on the exercise of the right to vote, nor does it quantitatively dilute votes that have been cast. Rather, the Texas system creates barriers to candidate access to the primary ballot, thereby tending to limit the field of candidates from which voters might choose. The existence of such barriers does not of itself compel close scrutiny. Compare Jenness v. Fortson, 403 U.S. 431 [91 S.Ct. 1970, 29 L.Ed.2d 554] (1971), with Williams v. Rhodes, 393 U.S. 23 [89 S.Ct. 5, 21 L.Ed.2d 24] (1968). In approaching candidate restrictions, it is essential to examine in a realistic light the extent and nature of their impact on voters.”
(405 U.S. at p. 143, 92 S.Ct. at p. 855, fns. omitted.) The court in Bullock goes on to conclude that the Texas filing fee requirement had “a real and appreciable impact on the exercise of the franchise” (id., at p. 144, 92 S.Ct. at p. 146), thus triggering the stricter standard of review.
Unfortunately, neither Bullock nor any subsequent United States Supreme Court case has analyzed “the degree to which a particular regulation affects the right to vote ․” (Libertarian Party v. Eu (1980) 28 Cal.3d 535, 543, 170 Cal.Rptr. 25, 620 P.2d 612.) Nonetheless, California appellate courts have generally attempted to apply the Bullock formulation in evaluating candidate restrictions to determine whether the challenged regulation has a “real and appreciable impact” on the electoral process and thus must be subjected to strict scrutiny. (See Choudhry v. Free (1976) 17 Cal.3d 660, 664, 131 Cal.Rptr. 654, 52 P.2d 438; Fullerton Joint Union High School Dist. v. State Bd. of Education (1982) 32 Cal.3d 779, 799, 187 Cal.Rptr. 398, 654 P.2d 168; Libertarian Party v. Eu (1978) 83 Cal.App.3d 470, 473, 147 Cal.Rptr. 888; Fridley v. Eu (1982) 131 Cal.App.3d 100, 104, 182 Cal.Rptr. 232.) As the California Supreme Court has explained, however,
“[N]ot every classification established by an ‘election law’ need be subjected to this ‘strict’ judicial scrutiny; innumerable election provisions detailing the mechanisms of the election process may have only minimal, if any, effect on the fundamental right to vote, and classifications of this nature may properly be judged under the ‘rational basis' equal protection standard.”
(Gould v. Grubb (1975) 14 Cal.3d 661, 670, 122 Cal.Rptr. 337, 536 P.2d 1337; see also Rittenband v. Cory (1984) 159 Cal.App.3d 410, 205 Cal.Rptr. 576.)
Historically, California courts applying the Bullock test have made liberal use of the strict scrutiny standard in evaluating restrictions on candidacy. (E.g., Johnson v. Hamilton, supra, 15 Cal.3d 461, 125 Cal.Rptr. 129, 541 P.2d 881 (applied to candidate residency requirements); Choudhry v. Free, supra, 17 Cal.3d 660, 131 Cal.Rptr. 654, 552 P.2d 438 (applied to candidate property ownership requirements); DeBottari v. Melendez (1975) 44 Cal.App.3d 910, 119 Cal.Rptr. 256 (applied to one-year restriction on recalled officials running for the same public office).) Nonetheless, this line of cases has consistently interpreted and applied federal constitutional law in resolving the equal protection issues presented. Moreover, the more recent California cases recognize that federal law in this area is unsettled and that the United States Supreme Court may be cutting back on the use of the strict scrutiny standard.3 (See, e.g., Choudhry v. Free, supra, 17 Cal.3d at p. 664, 131 Cal.Rptr. 654, 552 P.2d 438; Johnson v. Hamilton, supra, 15 Cal.3d at pp. 466–468, 125 Cal.Rptr. 129, 541 P.2d 881; Fridley v. Eu, supra, 131 Cal.App.3d at p. 104, 182 Cal.Rptr. 232; Libertarian Party v. Eu, supra, 83 Cal.App.3d at pp. 472–473, 147 Cal.Rptr. 888.)
We are thus faced with determining whether San Diego's prohibition of write-in candidates and write-in voting has a “real and appreciable impact” on the right to vote and on the “equality, fairness and integrity of the electoral process.” (Choudhry v. Free, supra, 17 Cal.3d at p. 664, 131 Cal.Rptr. 654, 552 P.2d 438.) In doing so, we recognize that the facts of this case do not fall neatly into any of the hollows carved by past decisions. Nearly all of the prior cases have considered restrictions which denied “access to the ballot altogether” (Libertarian Party v. Eu, supra, 28 Cal.3d at p. 543, 170 Cal.Rptr. 25, 620 P.2d 612) to some “significant” or “identifiable class” of potential candidates (Thompson v. Mellon (1973) 9 Cal.3d 96, 100, 107 Cal.Rptr. 20, 507 P.2d 628 (opn. of Sullivan, J.); cf. Fullerton Joint Union High School Dist. v. State Bd. of Education, supra, 32 Cal.3d at p. 799, 187 Cal.Rptr. 398, 654 P.2d 168). The group of persons denied access by the San Diego ordinance consists only of those individuals who decide initially not to become candidates but who later interpret changes in the political climate to have improved their chances of being elected. We find it difficult to characterize this as the systematic exclusion of a “significant” group.
Moreover, to the extent there is an excluded group, such persons are “identified” only by virtue of their conscious decision not to become a candidate by the normal filing deadline. The waxing and waning of a potential candidate's political enthusiasm in an otherwise open political system can hardly be equated with the less mutable characteristics which have defined the excluded groups in past cases. (Compare Choudhry v. Free, supra, 17 Cal.3d 660, 131 Cal.Rptr. 654, 552 P.2d 438 (defined by property ownership); Johnson v. Hamilton, supra, 15 Cal.3d 461, 125 Cal.Rptr. 129, 541 P.2d 881 (defined by residency); Knoll v. Davidson (1974) 12 Cal.3d 335, 116 Cal.Rptr. 97, 525 P.2d 1273 (defined by ability to pay); Libertarian Party v. Eu, supra, 83 Cal.App.3d 470, 147 Cal.Rptr. 888 (defined by party affiliation).) The San Diego system is thus, in a very real sense, nondiscriminatory in nature: Anyone can become a candidate if filing deadlines are complied with; if they are not, everyone is subject to the same prohibition against becoming a write-in candidate. (See Green v. Layton (1975) 14 Cal.3d 922, 928, 123 Cal.Rptr. 97, 538 P.2d 225.)
A recent case employed similar reasoning in holding that the lack of an appreciable impact justified application of the rational basis test in evaluating a candidacy restriction. In Fridley v. Eu, supra, 131 Cal.App.3d 100, 182 Cal.Rptr. 232, a state statute effectively precluded use of the write-in process by candidates seeking a minor party's nomination in the party primary process.4 The court concluded that the statute “does not have an appreciable impact upon the right to vote” because the statutory scheme “afforded all candidates access to the ballot by the ‘simple expedient of filing nomination papers.’ ” (Id., at p. 104, 182 Cal.Rptr. 232, quoting Blair v. Hebl (W.D.Wis.1980) 498 F.Supp. 756, 761.) Thus, even if the write-in procedure were unavailable, the alternate means of obtaining ballot access meant that the statutory restriction did not significantly affect the choices available to voters. (Compare Lubin v. Panish, supra, 415 U.S. at p. 716, 94 S.Ct. at p. 1320.) Under such circumstances, the statute need only be “rationally related to a legitimate state interest.” 5 (Fridley, supra, 131 Cal.App.3d at pp. 104–105, 182 Cal.Rptr. 232.)
Having determined that the San Diego scheme must be evaluated using the more deferential branch of the two-tiered equal protection rubric (see generally Fullerton Joint Union High School Dist. v. State Bd. of Education, supra, 32 Cal.3d at pp. 798–799, 187 Cal.Rptr. 398, 654 P.2d 168), we must now evaluate the governmental interests asserted by San Diego in support of its total prohibition against write-in candidacy and write-in voting. The parameters of our review are somewhat complicated by the fact that the prohibition applies to both primary and general elections. With respect to each, the considerations are somewhat different.
As to the primary, the prohibition simply enforces the candidacy declaration deadline, which is either 60 or 88 days depending on the election. (See ante, fn. 2.) If a potential candidate does not file his nominating petition before the deadline, he cannot be a candidate. The fact that such a deadline forces the potential candidate to anticipate the effect of various political forces does not render the deadline unreasonable. (See Storer v. Brown (1974) 415 U.S. 724, 734, 94 S.Ct. 1274, 1281, 39 L.Ed.2d 714.) Although the state system allows the nomination papers for a write-in candidate to be filed up to 14 days before the election, San Diego certainly has a legitimate interest in assuring that the press and the electorate have sufficient time to investigate a candidate's background and philosophy in a thoughtful and deliberate manner. We are unable to say that a three-month deadline for declaring candidacy is not reasonably related to the achievement of this significant governmental interest. (See American Party of Texas v. White (1974) 415 U.S. 767, 779–780, fn. 10, 94 S.Ct. 1296, 1305, fn. 10, 39 L.Ed.2d 744.)
The prohibition against write-in voting at the general election involves different considerations. Where non-partisan offices—such as those involved in San Diego municipal elections—are concerned, the clear purpose of the primary election is to narrow the field of candidates to two so that the winner of the general election is assured of having the support of a majority of the voters. (Cf. Storer v. Brown, supra, 415 U.S. at p. 735, 94 S.Ct. at p. 1281.) The United States Supreme Court has recognized this as a permissible if not significant governmental interest. (Williams v. Rhodes, supra, 393 U.S. at p. 32, 89 S.Ct. at p. 11.) Were write-in voting permitted in the general election, the winner might receive significantly less than 50 percent of the vote.6 Accordingly, we believe that San Diego's prohibition of write-in voting at the general election is reasonably related to a legitimate governmental interest.
San Diego citizens may feel the need to re-examine the prohibition against write-in voting at some point in time. The legislative branch of city government is well-equipped to conduct such a re-examination if and when it is deemed appropriate. Our function is limited to the determination that a legislative enactment of this type falls within the reasonable range of alternatives which balance the important competing interests which are present in this case. The choice of the particular means of balancing those interests is left to the citizens of San Diego through their elected representatives.
The alternative writ is discharged. The petition for peremptory writ of mandate is denied.
1. In addition to Abdelnour and the City, the named respondents include the San Diego County Registrar of Voters and mayoral and city attorney candidates who appeared on the June 5 primary ballot. The Registrar of Voters has no independent interest in the merits of this proceeding. He was named as a respondent simply because he was under contract with Abdelnour to conduct the City's June 5 primary election. (See S.D.Mun.Code, §§ 27.2004, 27.2014.) The mayoral and city attorney candidates are, in our view, not properly named as respondents. Although they may have an indirect interest in the outcome of the case, it is no greater than in any other situation in which a legislative enactment is challenged which benefits one group of persons by restricting the actions of another. On our own motion, we order the petition dismissed as to such candidates.
2. Where a municipal election occurs in an odd-numbered year, the nominating petition need only be filed 60 days before the primary election. (S.D.Mun.Code, § 27.2111.) In even-numbered years, San Diego coordinates its primary election with the state primary and adopts the state time deadlines, which require nomination documents to be filed not later than 88 days before the primary. (Ibid.; Elec.Code, § 6490.) For the purposes of our discussion here, we assume without deciding that there is a rational reason for the difference in deadlines, based perhaps on the greater number of offices to be elected in even-numbered years.
3. This somewhat more deferential approach to candidate restrictions may be signaled by the recent decision in Clements v. Fashing (1982) 457 U.S. 957, 102 S.Ct. 2836, 73 L.Ed.2d 508. Clements concerned a challenge to two Texas constitutional provisions which prohibited a large number of public officials from running for the state legislature and which forced a more limited number to resign from their current office prior to announcing their candidacy for any other public office. The four-justice plurality opinion by Justice Rehnquist explains that the Court's “ballot access” cases “focus on the degree to which the challenged restrictions operate as a mechanism to exclude certain classes of candidates from the electoral process. The inquiry is whether the challenged restriction unfairly or unnecessarily burdens ‘the availability of political opportunity.’ ” (Id., at p. 964, 102 S.Ct. at p. 2844, quoting from Lubin v. Panish (1974) 415 U.S. 709, 716, 94 S.Ct. 1315, 39 L.Ed.2d 702.) The plurality goes on to categorize the two lines of ballot access cases in which the Court has applied strict scrutiny principles as those involving wealth-based restrictions (e.g. Lubin v. Panish, supra, 415 U.S. 709, 94 S.Ct. 1315, 39 L.Ed.2d 702; Bullock v. Carter, supra, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92) and those which burden the First Amendment associational interests of small political parties or independent candidates (e.g., Illinois Elections Bd. v. Socialist Workers Party, supra, 440 U.S. 173, 99 S.Ct. 983, 59 L.Ed.2d 230; American Party of Texas v. White (1974) 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744; Williams v. Rhodes, supra, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24). (457 U.S. at pp. 964–965, 102 S.Ct. at pp. 2844–45.)While not necessarily limiting the strict scrutiny analysis to only those two categories, Justice Rehnquist explained in Clements that the interference at issue was not significant enough to trigger the heightened review standard. (Id., at pp. 967, 970, 102 S.Ct. at pp. 2845, 2847.) He noted that the Texas system did not absolutely prohibit the officials from becoming candidates for the other offices. The restrictions were viewed as “a de minimis burden” on the political aspirations of the affected persons because they discriminate “neither on the basis of political affiliation nor on any factor not related to a candidate's qualifications to hold political office.” (Id., at p. 967, 102 S.Ct. at p. 2845.)The two illustrative categories mentioned by the Clements plurality suggest that strict scrutiny is appropriate where the candidacy restriction interferes not only with the right to vote but also with some other constitutionally protected interest (e.g., association) or constitutionally questionable classification (e.g., wealth). No California court has yet had the opportunity to comment on the Clements analysis, although some language in prior cases suggests a tension with Justice Rehnquist's rationale. (See, e.g. Fullerton Joint Union High School Dist. v. State Bd. of Education, supra, 32 Cal.3d at p. 799, 187 Cal.Rptr. 398, 654 P.2d 168 (“[I]t is the impact of the classification on the electoral process that triggers strict scrutiny. That heightened mode of analysis is not limited to cases involving suspect or invidious classifications.”); see also Bay Area Women's Coalition v. City and County of San Francisco (1978) 78 Cal.App.3d 961, 967, 144 Cal.Rptr. 591.)We perceive that the Clements plurality would apply the rational basis test in evaluating the San Diego ordinance prohibiting write-in voting because such ordinance implicates no additional constitutionally protected class or value. In view of our conclusion that strict scrutiny is inapplicable even under existing California precedent because the challenged San Diego scheme has no “real and appreciable impact” on the fairness and integrity of the voting process, we need not address the difficult questions of the extent to which the Clements plurality represents the view of the Court and, if so, whether the equal protection provisions of California Constitution compel a different analysis.
4. The restriction challenged in Fridley was the statutory requirement that in order for a write-in who wins a primary election to have his name placed on the general election ballot, he must have received at least one percent of the total number of votes cast in the last general election for the office he seeks. Mr. Fridley, a member of the Libertarian Party, won that party's primary for the office of state assemblyman in the 22nd District. The statute in question made it impossible for him to appear on the general election ballot because the total number of registered Libertarian voters in the 22nd District did not equal one percent of the votes cast in the previous general election for the assembly seat.
5. The Fridley court was correct in its conclusion that the minimal impact of the statutory restriction on the choices available to voters justified application of the rational basis test. Furthermore, the state undoubtedly has a legitimate interest in assuring that a write-in candidate does not merely take advantage of a situation where no one appears on the primary ballot (131 Cal.App.3d at p. 105, 182 Cal.Rptr. 232), but in fact demonstrates a significant level of support “among that party's electorate” (ibid.). If the result in Fridley can be questioned, it is only because the requirement used to gauge support—one percent of all votes cast for that office at the last general election—has little relationship to the amount of support possessed by the write-in candidate within his party. (Compare Blair v. Hebl, supra, 498 F.Supp. 756 (level of support requirement for write-in candidates in primary election tied to number of votes received by that party's gubernatorial candidate in the last general election).)
6. In fact, unsuccessful candidates at the primary election could simply continue their campaigns as write-ins at the general election.
WIENER, Acting Presiding Justice.
WORK and BUTLER, JJ., concur.