Do The Secretary Of State’s Criteria For Determining “Generally Recognized Presidential Candidates” Violate The APA?

Earlier this week, the California Secretary of State released his list of “generally recognized presidential candidates”. These are the individual whose names will appear on California’s June 2016 primary ballot. The Secretary of State listed 43 individuals from six political parties (American Independent, Democratic, Green, Libertarian, Peace & Freedom, and Republican). It’s not too late to get your name on the list. The Secretary of State can add names until April 1 (an amusing coincidence). Even if you don’t make the list of the generally recognized, you can still qualify for the ballot by signature gathering. Cal. Elec. Code § 6061 (Democratic Party) and § 6343 (Republican Party).

What makes a candidate “generally recognized”? With respect to the Democratic and Republican parties, the Secretary of State listed the following criteria:

  • Qualifying for federal matching funds,
  • Appearing in presidential public opinion polls, candidates’ forums, or debates,
  • Being on other states’ primary ballots as a presidential candidate,
  • Actively campaigning in California for the presidency,
  • Having a campaign office in California, and
  • Advice and input from the chairpersons of the applicable party or the applicable State Central Committee.

Except for qualifying for funding in the case of Democratic candidates (Cal. Elec. Code § 6041), these criteria are not found in the Elections Code or in the California Code of Regulations. Because the Secretary of State has published these criteria and has apparently applied them in completing his list, they may be void as an “underground regulation” under California’s Administrative Procedure Act.

Under the APA, every “regulation” is subject to the rulemaking procedures of the APA unless expressly exempted by statute. Cal. Gov’t Code § 11346. A regulation is defined to mean “every rule, regulation, order, or standard of general application or the amendment, supplement, or revision of any rule, regulation, order or standard adopted by any state agency to implement, interpret, or make specific the law enforced or administered by it, or to govern its procedure.” Cal. Gov’t Code § 11342.600. Although the Secretary of State’s announced procedures (Democratic Party and Republican Party) disclaim status as regulations, they self evidently are standards of general application governing the Secretary of State’s procedure for identifying “generally recognized presidential candidates” and for interpreting and making specific the applicable statutory provisions. What an agency does matters more than what it says it is not doing.