For Opinion on Hearing, see 116 Cal.Rptr. 97, 525 P.2d 1273.
Opinion on pages 823 to 849 omitted
[101 Cal.Rptr. 441]Marjorie Gelb, Hayward, Vernon W. Salvador, William R. Petrocelli, John Erickson, Oakland, Legal Aid Society of Alameda County, for petitioners.
Richard J. Moore, County Counsel, James E. Jefferis, Asst. County Counsel, County of Alameda, Oakland, for respondent.
MOLINARI, Presiding Justice.
This is a proceeding brought pursuant to section 6403 of the Elections Code.
All statutory references are to the Elections Code unless otherwise indicated.
Discussing generally the problem of preparing for an election, the California Attorney General in volume 14 of his opinions, pages 32-33, stated:
Section 6403 provides, in relevant part, that 'Whenever it is made to appear by affidavit . . . that an error or omission has occurred or is about to occur in the placing of any name on, or in the printing of, an official primary election ballot, or that any wrongful act has been or is about to be done by any person charged with any duty concerning the primary election, or that any neglect of duty has occurred or is about to occur, the court shall order the officer or person charged with the error, wrong or neglect forthwith to correct the error, desist from the wrongful act or perform the duty, or show cause why he should not do so. . . .'
Pursuant to the provisions of section 6403 this proceeding may be brought in the Supreme Court, in a court of appeal, or in the Superior court of the proper county.
The majority do not suggest, nor has anyone, what 'reasonable alternative means of access to the ballot' is available. The only possible alternative coming to my mind might be the requirement of a substantial number of signatures to a nominating petition. But it is public knowledge that such signatures cost money to obtain, and at going rates for such solicitation, the cost to the candidate would be far greater than the instant disputed filing fee.
No appeal lies from an order made pursuant to this section and such order is final on entry. (Matter of Snyder, 158 Cal. 218, 219, 110 P. 820; Donnellan v. Hite, 139 Cal.App.2d 43, 45, 293 P.2d 158.) The statute 'has to do solely with errors or omissions of others charged under the law with duties relative to the matter of the primary election, and the relief expressly provided for therein is an order requiring 'the officer or person charged with such error, wrong or neglect to forthwith correct the error, desist from the wrongful act or perform the duty.'' (Sinclair v. Jordan, 183 Cal. 486, 488, 191 P. 910, 911.)
In the instant case petitioners, on their own behalf and on behalf of all others similarly situated, filed the petition pursuant to section 6403 on March 8, 1972. The petition alleges that respondent Registrar of Voters refused to accept for filing the declaration of petitioners Alphonso Zapata and Sandy Knoll for the office of supervisor of the County of Alameda at the June 6, 1972 primary election without the payment of filing fees by each in the sum of $295.76. The petition alleges that Zapata and Knoll advised respondent that they were financially unable to pay such fee and that these candidates meet all legal requirements to have their names placed upon the ballot for said office at said primary election, except that they are too poor and unable to pay said filing fee.
Whenever the term 'county clerk' is used in the Elections Code it also means the 'registrar of voters' where the office has been estabished as in the situation in the instant case. (§ 17.)
These words are those of the Bullock v. Carter court which finds a public interest in restricting candidates to such persons.
The petition also alleges that the County of Alameda intends to charge each candidate for supervioso at said primary election between $383.40 and $633.30 as the cost for including in a 'voter's pamphlet' prepared by the county containing a 'statement of [101 Cal.Rptr. 442] qualifications' with respect to candidates in such election. It is alleged that Zapata and Knoll are unable to pay said charges because of indigency.
The gravamen of the petition is that statutes requiring the payment of such fees and charges are unconstitutional because, in requiring the payment of monetary fees to run for political office, these statutes discriminate against petitioners on account of their poverty, in violation of the equal protection clause of the Fourteenth Amendment of the United States Constitution, the equal protection clauses of the California Constitution (art. I, §§ 11 and 21) and the provision of the latter Constitution providing that 'No property qualification shall ever be required for any person to vote or hold office.' (Art. I, § 24.) The equal protection violation is also asserted on the basis that impoverished voters are denied the right to vote for candidates of their same economic strata. Unconstitutionality is also alleged on the basis that the subject statutes restrain the right of political advocacy and association in violation of the First and Fourteenth Amendments of the United States Constitution.
Petitioners pray in said petition that sections 6551 to 6555, inclusive, and section 10012.5, insofar as they require the payment of filing fees, be found unconstitutional and void and further pray that an order be issued by this court directing respondent to issue, transmit and process all papers required by the Elections Code to allow Zapata and Knoll to run for public office and be included in the voter's pamphlet or show cause why he should not be required to do so.
On the basis of the petition we issued an order on March 8, 1972, directing respondent to grant petitioners the relief prayed for or to show cause before this court on March 9, 1972, why he should not be required to do so. On March 9, 1972, respondent appeared in response to the order to show cause to oppose the petition. The hearing proceeded and both parties presented arguments. We then determined that the matter could not be adequately adjudicated and resolved in view of the shortness of time within which to determine the several issues presented, the last date for the filing and acceptance of the declaration of candidacy for Zapata and Knoll being the next day, i. e., March 10, 1972. Accordingly, we issued a conditional order directing respondent to accept the nomination papers of Zapata and Knoll if offered in proper form and accompanied by an affidavit of indigency, reserving to this court jurisdiction under section 6403 to determine whether the printing of the name of such candidate on the ballot shall be conditioned upon his or her paying the prescribed fee, and to accept a candidate's statement from Zapata and Knoll upon the same conditions without requiring any deposit therefor. We thereupon continued the matter to March 28, 1972, for further proceedings and to permit respondent to present points and authorities and such affidavits as he might deem appropriate directed to the issues of whether the fee and deposit in question are reasonably necessary to the accomplishment of a legitimate state objective, and, if so, whether either Zapata or Knoll could be expected to fulfill such fee and deposit from his or her own resources or modest contributions from others. Petitioners were granted leave to file a reply and counteraffidavits.
At the hearing on March 9, we orally declared that section 6403 embraced only the rights of Zapata and Knoll and that we deemed the proceeding one which directly concerned only these petitioners. Accordingly, we orally announced that we were not treating the petition as a class action but only as a proceeding between Zapata and Knoll, on the one hand, and respondent registrar on the other. We here reiterate this holding. We interpret section 6403 to apply to particular situations involving an error or omission in the placing of a name on, or the printing of, an election ballot or where any wrongful act has been or is about to be done by any person charged with a duty concerning the primary election, or that any neglect [101 Cal.Rptr. 443] of duty has occurred or is about to occur by such person. In the instant case the proceeding is concerned only with whether an error or omission has occurred, or is about to occur, on the County of Alameda ballot insofar as it concerns Zapata and Knoll, or whether any wrongful act has or is about to be committed by respondent affecting the right of Zapata or Knoll to run for public office or whether respondent is neglecting a duty owing them. No other parties are involved or can be involved. We, accordingly, do not have the practical necessity and paramount convenience upon which class actions are predicated, nor do we have an ascertainable class and a well-defined community interest in questions of law and fact that are necessary requirements in a class action. (See Daar v. Yellow Cab Co., 67 Cal.2d 695, 703-704, 63 Cal.Rptr. 724, 433 P.2d 732; Chance v. Superior Court, 58 Cal.2d 275, 291-292, 23 Cal.Rptr. 761, 373 P.2d 849)
On March 17, 1972, respondent moved to dismiss the instant proceeding on the ground that Zapata and Knoll were ineligible to be candidates for the office involved and that they have no standing to maintain this proceeding. The basis of Zapata's asserted ineligibility is that he is not a resident or the 5th Supervisorial District for which district he sought to file a declaration of candidacy. The declaretion in support of the motion declared that Zapata withdrew his demand for the declaration of candidacy forms directed to be issued to him by this court pursuant to our conditional order made on March 9.
The basis of Knoll's asserted ineligibility is that she does not satisfy the requirements of section 4 of the Charter of the County of Alameda which requires that each member of the Board must have been an elector for at least one year immediately preceding his election. It is alleged that in her declaration of candidacy Knoll states that she was born on June 1, 1952, and became an elector on July 5, 1971, the date on which article XXVI of the Constitution of the United States became effective. Accordingly, respondent asserts that Knoll will not have been an elector of the district in which she seeks election for at least one year immediately preceding June 6, 1972, the date of the primary election. Respondent alleges that he has accepted the nomination papers from Knoll pursuant to the conditional order of this court, without the payment of fees or deposits, and that these forms are properly filled out in all respects, except that the statement of qualifications contains particular political matters reading as follows: 'I am a mimber of the Young Socialist Alliance and the Young Socialists for Linda Jenness for President and Andrew Priley for Vice President of the United States in 1972.' Respondent further asserts in his declaration in support of the motion to dismiss that he does not intend to place the name of petitioner Knoll on the ballot for the primary election to be held on June 6, 1972, by reason of her aforementioned ineligibility, unless directed to do so by this court, and that if directed to place her name on the ballot, he intends to strike from her statement of qualifications the above-quoted partisan political matter, unless ordered otherwise by this court.
"Elector' means any person who qualifies under section 1 of Article II of the Constitution of this State.' (§ 20; Schaaf v. Beattie, 265 Cal.App.2d 904, 909, 72 Cal.Rptr. 79, 83.) An 'elector' is distinguished from a 'voter.' An 'elector' is one who has qualifications to vote but may not have complied with the legal requirements as conditions precedent to the exercise of the right to vote. (People v. Darcy, 59 Cal.App.2d 342, 348-349 P.2d 118; see § 21.)
At the hearing of the motion to dismiss these proceedings on March 28, 1972, petitioner Zapata admitted that he is not eligible for election to the supervisorial office he seeks, i. e., the 5th Supervisorial District, and that he has withdrawn his demand for the declaration of candidacy forms for that office. We, therefore, dismissed the instant proceedings as to petitioner Zapata. With respect to petitioner Knoll we deferred our decision on the motion [101 Cal.Rptr. 444] to dismiss for determination in conjunction with our consideration of the instant petition on the merits.
Adverting to the motion to dismiss as to Knoll, we apprehend that we are obliged to dismiss this petition as to her if we are satisfied that, as a matter of law, she is ineligible for the office she seeks, in which case her petition would be rendered moot. We observe, however, that notwithstanding such dismissal we could still proceed to determine the question presented by the instant petition on the basis that it is a question of general publec interest. (See DiGiorgio Fruit Corp. v. Dept. of Employment, 56 Cal.2d 54, 58, 13 Cal.Rptr. 663, 362 P.2d 487; County of Madera v. Gendron, 59 Cal.2d 798, 804, 31 Cal.Rptr. 302, 382 P.2d 342.) The determination of the instant question affects persons who in future elections may seek public office but are unable to qualify because they do not have the finances with which to pay a filing fee. In the interests of resolving the uncertainty which has arisen as to the applicability of the recent Kunited States Supreme Court case of Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92, concerning the constitutionality of filing fees to the California statutes providing for such fees, we would be disposed to resolve the question notwithstanding a dismissal of Knoll's petition.
We have concluded that such a dismissal is not warranted, however, because we cannot say that, as a matter of law, Knoll is ineligible for the office she seeks upon the grounds urged by respondent. We observe, initially, that respondent, as a registrar of voters, is not authorized by law to declare ineligibility in the respects herein asserted. Respondent is a ministerial officer who may reject declarations for candidacy only as specifically provided by the statutes. With respect to nonpartisan offices, the county clerk or the registrar of voters is justified in not printing a candidate's name on the ballot to be used in a primary election where the declaration of candidacy is filed not less than 83 days and not more than 113 days prior to the primary election. (§ 6490.) He is specifically mandated by statute not to accept for filing any sponsor certificate unless all the blanks in the certificate are filled. (§ 6497.) Such officer shall not accept sponsor certificates or a declaration of candidacy or declaration of acceptance of nomination after 5:00 o'clock p. m. on the 88th day prior to the primary election. (§§ 6499, 6511.) Finally, the county clerk or registrar of voters is not required to issue the forms for nomination or election unless the filing fees provided by statute are paid. (§ 6551.) These forms are required to be sworn to before a proper officer. (§ 6491, 6494, 6511.) Implicit in these statutes is the requirement that when the forms issued by the county clerk or registrar of voters are completed as required by the statutes and are presented to him for filing they shall be filed by him. (See §§ 6498, 6499, 6505, 6511, 6523, 6524.)
Section 6551 provides that all forms required for nomination and election shall be furnished only by the county clerk as registrar of voters who, at the time of the issuance of such forms, 'shall type in the forms the name of the candidate and the office for which he is a candidate, shall imprint a stamp which reads 'Official Filing Form,' and shall affix his signature.'
In the instant case Knoll, in conformity with our order of March 9, has substantially complied with the statutory requirements for the filing of declarations of candidacy and sponsor certificates. Upon such compliance respondent was required to accept for filing and to file these forms. It was not his function to determine or ascertain whether Knoll was otherwise eligible to hold office or was disqualified from holding such office. (See Williams v. Gill, 65 Cal.App. 129, 132, 223 P. 559; Schaaf v. Beattie, supra, 265 Cal.App.2d 904, 909, 72 Cal.Rptr. 79.) These are matters for judicial determination upon a proper petition filed and presented by an aggrieved party. (See Donham v. Gross, 210 Cal. 190, 192-193, 290 P. 884; and see §§ 20300, 20330.) Such incligibility [101 Cal.Rptr. 445] or disqualification may not be determined ministerially.
We are of the opinion, moreover, that it cannot now be determined whether Knoll is ineligible for the office to which she aspires. Knoll may or may not be elected at the primary election. In order for her to be elected it is required that she receive a majority of all the ballots cast for candidates for the office for which Knoll seeks nomination. (Cal.Const., art. II, § 2 3/4.) If she is not elected at the primary election by a majority vote and is one of the two candidates receiving the highest number votes, she must be a candidate for the subject office at the ensuing election. (§ 6612.) If petitioner Knoll is elected at the general election in November (§ 23) she will have been an elector for more than one year prior to her election. In view of these possibilities it cannot be determined at this time whether Knoll will have been an elector for more than one year immediately preceding her election.
On the question of residence, we apprehend, moreover that the recent decision of the United States Supreme Court in Dunn v. Blumstein (March 21, 1972) 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274, holding that unduly long durational residential requirements for voters are violative of the equal protection clause of the Fourteenth Amendment as not necessary to further a compelling state interest, may present a question as to the constitutional validity of unduly long durational requirements for electors seeking public office. We do not deem it necessary to reach this constitutional issue in these proceedings.
In Bullock v. Carter, supra, 405 U.S. 134, 92 S.Ct. 849, the Supreme Court observes that because filing fees affect aspirants for office, rather than voters, it had not attached the same fundamental status to candidacy as it did upon the exercise of the right to vote and therefore had not invoked a rigorous standard of review in candidacy cases. The court recognized, however, that there is not always a 'neat separation' between the rights of voters and the rights of candidates, particularly when the right of candidacy has a correlative effect on voters.
For the foregoing reasons we conclude that respondent's motion to dismiss Knoll's petition in these proceedings must be denied.
We now advert to the petition on its merits. In doing so we take cognizance that the proceedings contemplated in section 6403 may be utilized to challenge the constitutionality of provisions of the Elections Code which deny the right to participate in a primary election. (Communist Party v. Peek, 20 Cal.2d 536, 540-541, 127 P.2d 889; Independent etc. Party v. County Clerks, 31 Cal.2d 549, 549-550, 191 P.2d 6.) The rationale of the decisions which have so held is that the denial of the right to participate in a primary election by an officer charged with any duty concerning such election, based on statutes which are unconstitutional, results in an error, omission or neglect of duty in connection with said election within the purview of section 6403. Accordingly, we reach the constitutional issues presented in the instant case as to whether the challenged fees are reasonably necessary to the accomplishment of legitimate state objective.
Section 2900 of the Elections Code, under which relief was sought in these cases, was the predecessor statute of section 6403 which was enacted in 1961 without substantially changing the provisions of former section 2900.
As early as 1909, the California Supreme Court, in Socialist Party v. Uhl, 155 Cal. 776, 103 P. 181, was called upon in a mandamus proceeding to determine the constitutional validity of filing fees for candidates in primary elections. In that case, it was contended that the statutory requirement for the payment of such filing fees was unconstitutional under the provisions of section 24 of article I of the California Constitution which provides that no property qualification shall ever be required by any person to vote or hold office. [101 Cal.Rptr. 446] Petitioners did not claim that the fees were unreasonable but questioned 'the right to exact them at all.' (At p. 789, 103 P. at p. 187.) In upholding the validity of the provision requiring the payment of fees as sustainable under said constitutional amendment as being within the power of the Legislature to provide reasonable conditions for the exercise of the rights granted by the primary law, the reviewing court stated: "The right to exact a reasonable fee for the privilege of running for office may be sustained, on the principle that fees in actions and proceedings in courts, and for filing and recording papers, are sustainable, namely, that those who seek the benefit of a particular proceeding provided by law may be compelled to reimburse the state for a portion of the costs the state incurs in maintaining the instrumentality to carry into effect the particular proceeding. In other words, the state asks the candidate for office under a particular law to reimburse it for a part of the expense it incurs in carrying that law into effect. This clearly the state may lawfully do.' [Citation.] [p] Aside from this, such a provision is a reasonable restriction, and provides an orderly and systematic method by which the people may select their candidates for public office. The exaction of a fee tends to prevent an indiscriminate scramble for office, where it is fixed at an amount that will impose no hardship upon any person for whom there should be any desire to vote as a nominee for any office, and yet enough to prevent the wholesale filing of petitions for nominations of any one regardless of whether or not he is a desirable candidate. It is but a reasonable means adopted by the Lehislature to regulate primary elections for the selection of candidates for public office.' (At pp. 789-790, 103 P. at p. 187.)
Speaking directly to the constitutional provision under consideration, the Supreme Court in Socialist Party observed that the provision as to the payment of a fee 'is a reasonable regulation prescribed by the Legislature on the wise assumption that any candidate who is of sufficient worth to stand before the people as a candidate for public office, and whose candidacy calls for the payment of the fee required by the act, will be at no difficulty to pay the required amount. [Citations.]' (155 Cal. at p. 790, 103 P. at 187.)
In Socialist Party we find dicta to the effect that the payment of a fee based on the emoluments of the office to which the candidate aspires, or based on the importance of the office from the standpoint of dignity and influence as well as from the standpoint of emolument, might be deemed to be arbitrary and unreasonable as bearing no relation to the services rendered and as making the ability of a person to pay the test of his qualifications. (155 Cal. at pp. 790-791, 103 P. 181.)
On February 24, 1972, the United States Supreme Court rendered its decision in Bullock v. Carter, supra, 405 U.S. 134, 92 S.Ct. 849, holding that the Texas primary election filing system contravenes the equal protection clause of the Fourteenth Amendment. In that case three persons possessing the qualification for local office in the Texas Democratic primary election claimed that they were unable to pay the required filing fees and were therefore barred from running for office. Under the Texas statute the fees ranged from 10 percent to 99 percent of the annual salary of the particular office, and ranged from $150 to $8,900. As it affected these particular aspirants the filing fees amounted to $1,000, $1,424.60 and $6,300, respectively. The Texas statute provided further for the estimating by the party committee of the total cost of the primary election and to the apportionment by that committee of such cost according to its judgment of what was 'just and equitable' in the light of 'the importance, emolument, and term of office. . . .'
Bullock holds that where a filing fee scheme, such as the Texas system, has a real and appreciable impact on the exercise of the franchise, and such impact is related to the resources of the voters supporting a particular candidate, statutes providing for such a filing fee scheme must be closely [101 Cal.Rptr. 447] scrutinized and will pass constitutional muster only if found reasonably necessary to the accomplishment of a legitimate state objective. (405 U.S. at p. 144, 92 S.Ct. at p. 856.) The high court observed that the very size of the fees imposed under the Texas system gave it a 'patently exclusionary character' and that such a system fell 'with unequal weight on voters, as well as candidates, according to their economic status' because it tends to deprive the less affluent segment of the community of the opportunity to vote for the candidate of their own choosing since such favorites may be unable to pay the high filing fees. The court also took cognizance that 'To the extent that the system requires candidates to rely on contributions from voters in order to pay the assessments, . . . it tends to deny some voters the opportunity to vote for a candidate of their choosing' while 'at the same time it gives the affluent the power to place on the ballot their own names or the names of persons they favor.' (405 U.S. at p. 144, 92 S.Ct. at p. 856.)
Bullock recognizes that a state has a legitimate interest in regulating the number of candidates on the ballot and that a system which creates barriers tending to limit the field of candidates from which the voters might choose is not per se constitutionally suspect. (405 U.S. 134 at p. 145, 92 S.Ct. at p. 857.) 'In so doing, the State understandably and properly seeks to prevent the clogging of its election machinery, avoid voter confusion, and assure that the winner is the choice of a majority, or at least a strong plurality, of those voting without the expense and burden of runoff elections. . . . Moreover, a State has an interest, if not a duty, to protect the integrity of its political processes from frivolous or fraudulent candidacies. [Citation.]' (405 U.S. at p. 145, 92 S.Ct. at p. 857.) This objective, however, cannot be achieved by totally arbitrary means; 'the criterion for differing treatmint must bear some relevance to the object of the legislation.' (405 U.S. at p. 145, 92 S.Ct. at p. 857.) After observing that the Texas filing fees 'exclude legitimate as well as frivolous candidates' and that 'other means to protect those valid interests [the regulation of the ballot] are available,' the high court concluded that the Texas fee requiremint constituted an arbitrary method of regulating the ballot. (405 U.S. at p. 146, 92 S.Ct. at p. 857.)
It is also recognized by the decision in Bullock that in addition to the state's interest in regulating the ballot, filing fees serve to relieve the state treasury of the cost of conducting primary elections and that this is a legitimate state objective. However, under the standard of strict scrutiny there must be a showing of necessity. Such necessity is not established on the theory that since the candidates are availing themelves of the primary machinery, they should pay that share of the cost they have occasioned. That cost is properly apportioned by spreading it among all the voters in an attempt to distribute the influence without regard to wealth. (Bullock v. Carter, supra, 405 U.S. at p. 147, 92 S.Ct. 858.) In the light of these principles the high court concluded that no element of necessity had been demonstrated in the Texas present means of financing primary elections.
The thrust of Bullock is that 'By requiring candidates to shoulder the costs of conducting primary elections through filing fees and by providing no reasonable alternative means of access to the ballot, the State of Texas has erected a system which utilizes the criterion of ability to pay as a condition of being on the ballot, thus excluding some candidates otherwise qualified and denying an undetermined number of voters the opportunity to vote for candidates of their choice.' (405 U.S. at p. 149, 92 S.Ct. at p. 859.) In reaching this conclustion the Supreme Court observes 'It must be imphasized that nothing herein is intended to cast doubt on the validity of reasonable candidate filing fees or licensing fees in other contexts.' (405 U.S. at p. 149, 92 S.Ct. ap p. 859.) Bullock does not amplify upon this disclaimer. Accordingly, it is left to the judiciary to reconcile [101 Cal.Rptr. 448] this statement with the other principles declared in Bullock in applying that decision to the determination of the constitutional propriety of filing fees in a given case.
Adverting to the instant case we first observe that the only appreciable differance between it and Bullock is that in the present case the cost of financing the primary election is not borne entirely by the filing fees. It is conceded that the fees received in the present case from candidates would only pay for a small fraction of the costs of the primary election. It is clear, however, that the filing fees here in question, as in the case of the Texas statute, are tied to the salary of the office sought and not to the election costs or the costs of the filing process. Under sections 6554, subdivision (e) and 6552, subdivision (a) the filing fee to be paid by the county clerk by each candidate for a county office other than a judicial office and the office of district attorney is two percent of the first year's salary for such office if the annual salary is more than $2,500. In the case of a judicial office or for the office of district attorney, the filing fee is one percent of the annual salary. (§ 6554, subd. (d).) It is thus apparent that in California we have a wide range of filing fees fixed only on the basis of the salary paid for the office to which the candidate aspires. Thus, the filing fees for a county office holder, other than judge or district attorney, range from a minimum of $50 (based on a salary of $2,500) to $701.60 for the office of supervisor of Los Angeles County. (See Gov.Code, § 28101; art. II, § 4, Charter of Los Angeles County. ) In the present case the filing fee for supervisor of Alameda County is $295.76, a sum higher than the minimum filing fee of $150 in the Texas statute.
Judicial notice is taken of the provisions of the Charter of Log Angeles County. (Evid.Code, §§ 451, subd. (a); 459.)
Since the filing fees in question are based upon the emolument of office and are of such a size as to be patently exclusionary in character, insofar as they involve the candidate who is unable to pay such fee, they have a real and appreciable impact on the exercise of the franchise and are, therefore, subject to close scrutiny under the holding of Bullock. It is obvious that the instant fees are intended to be assessed for the legitimate purpose of regulating the ballot by 'weeding out' spurious candidates. But, as held in Bullock, the legitimate state objective is not satisfied by the assessment of fees which a candidate is willing but unable to pay since a 'serious candidate' who is indigent is excluded as well as the frivolous candidate. As we read and understand Bullock, when a state elects to enact statutes which provide for fees which, because they are based on the ability to pay, are patently exclusionary, the state must also provide reasonable alternative means of access to the ballot for persons who are legitimate and serious candidates but are unable to pay the prescribed filing fees. In the absence of such alternative means the requirement that access to the ballot be solely by the payment of a fee which is exclusionary in character is an arbitrary means of achieving a legitimate state objective. Accordingly, since the California filing fee statutes under attack fail to provide for reasonable alternative means of access to the ballot they must, to that extent, be declared unconstitutional as constituting a denial of equal protection of the laws.
Adverting to the legitimate state objective of relieving the county's treasury of the cost of the primary election, respondent has made no showing that the payment of the subject fees are necessarily required to finance the cost of the election. Under the compulsion of Bullock, this burden was on respondent. We determine, moreover, that no contention is made by respondent that such is the purpose of the instant filing fees. His argument is predicated essentially on the ground that the required fees are reasonable and could be satisfied from Knoll's own resources and modest contributions from others. This contention finds its genesis in similar language in Bullock [101 Cal.Rptr. 449] read in conjunction with the Supreme Court's disclaimer that it did not intend to cast doubt on the validity of reasonable candidate filing fees.
In speaking of the size of the fees in the Texas system which gave it a patently exclusionary character, the court stated that such fees were 'Unlike a filing fee requirement which most candidates could be expected to fulfill from their own resources or at least through modest contributions, . . .' (405 U.S. at p. 143, 92 S.Ct. at p. 856.)
The approval by Bullock of reasonable candidate filing fees 'in other contexts' and the statement therein concerning a filing fee requirement which most candidates could be expected to fulfill from their own resources or through modest contributions must not be read in isolated context but in the light of entire decision. In speaking of election costs the Supreme Court clearly differentiated between the case before it and a case involving fees approximating the cost of processing a candidate's application for a place on the ballot, 'a cost resulting from the candidate's decision to enter a primary.' As observed by the court, 'The term 'filing' fee has long been though to cover trhe cost of filing, that is, the cost of placing a particular document on the public record.' (Bullock v. Carter, supra, 405 U.S. at p. 148, fn. 29, 92 S.Ct. at p. 858.) Accordingly, we apprehend that when Bullock speaks of 'reasonable filing fees' and a fee which a candidate could be expected to pay out of his own resources or from modest contributions, it is speaking of filing fees in this context. Significantly this is the context in which Socialist Party speaks when it discusses the exacting of a 'reasonable fee for the privilege of running for office' as reimbursement to the state for a portion of the costs it incurs 'in maintaining the instrumentality to carry into effect the particular proceeding.' (155 Cal. at pp. 789-790, 103 P. at p. 187.) Socialist Party dealt with fees ranging from $10 for candidates for county, legislative or municipal office to $50 to be paid by a candidate for state office, and clearly considered these fees in the context of fees 'in actions and proceedings in courts, and for filing and recording papers, . . .' (At p. 789, 103 P. at p. 187.)
It is significant to note that, notwithstanding the impact of inflation, the filing fees that are not based on a percentage of the salary of the office aspired to, but are based on a specific fee without reference to such salary are not higher than they were in 1909. Thus, the filing fee for most county offices is still $10. (See § 6554.)
Directing our attention particularly to Socialist Party in the light of the holding in Bullock, we first note that Socialist Party did not purport to deal with any asserted violation of the United States Constitution but only with whether there was a violation of section 24 of article I of the California Constitution. Socialist Party was dealing with a legitimate state interest but was not called upon to 'closely scrutinize' the California filing fee scheme under the strict standard of review applied in Bullock. We perceive, moreover, no substantial inconsistency between Socialist Party, and Bullock. The California case is equally concerned with a filing fee which does not exclude a candidate upon the criterion of ability to pay when it speaks of a filing fee 'fixed at an amount that will impose no herdship upon any person for whom there should be any desire to vote as a nominee for any office, . . .' (155 Cal. at p. 790, 103 P. at p. 187.) Finally, we observe that the dicta in Socialist Party frowned upon what Bullock 62 years later deemed constitutionally infirm i. e., the payment of a fee based on the emoluments of the office to which the candidate aspires or the dignity and influence of the office as well as the emolument. Socialist Party makes it clear that it disapproves the requirement of filing fees that bear no relation to the services rendered and make the ability to pay the test of the candidate's qualifications. (155 Cal. at p. 791, 103 P. 181.)
We sum up the holding in Bullock thusly: A state or any of its subdivisions may exact a filing fee approximating the cost of processing a candidate's application for a place on the ballot on the basis [101 Cal.Rptr. 450] that the serious candidate can be expected to pay such a fee from his own resources or through modest contributions. A state or its subdivisions may not, however, exact a filing fee which excludes a candidate from a place on the ballot upon the criterion of ability to pay as a condition therefor unless it also provides reasonable alternative means of access to the ballot. Insofar as the California statutes providing for filing fees for candidates are in conflict with these principles, they are unconstitutional as a denial of the equal protection of the laws of the United States Constitution.
A similar result utilizing, in part, the rationale employed by this opinion, has been reached in Chote v. Brown (U.S. N.D.1972) 342 F.Supp. 1353 dealing with the constitutionality of section 6552 providing for the filing fee for the office of Representative in Congress.
We now advert to Knoll's statement of qualifications. Respondent contends that he is entitled to require Knoll to make a prepayment of $497.90 as the estimated cost of her prorata share for the printing of her statement in the voter's pamphlet. He also asserts that, unless otherwise ordered by this court, he will strike from Knoll's statement of qualifications the matter which he alleges partisan and political reading as follows: 'I am a member of the Young Socialist Alliance and the Young Socialists for Linda Jenness for President and Andrew Puiley for Vice President of the United States in 1972.'
The candidate's statement of qualifications is provided for in section 10012.5. In pertinent part that statute provides as follows: 'Each candidate for elective office in any local agency, city, county, city and county or district may prepare a statement of qualifications on an appropriate form prepared by the clerk. Such statement may include the name, age, occupation, and education of the candidate and a brief description of no more than 150 words, of the candidate's qualifications expressed by the candidate himself. Such statement shall not include the party affiliation of the candidate, nor membership or activity in partisan political organizations. Such statement shall be filed in the office of the clerk when his nomination papers are returned for filing, . . . [p] The clerk shall send to each voter together with the sample ballot, a voter's pamphlet which contains the written statements of each candidate's qualifications that is prepared pursuant to this section. . . . [p] The local agency may bill a sum not greater than the actual prorated costs of printing and handling incurred by the agency as a result of providing this service. Only these charges may be levied and each candidate using this service shall be charged the same. [p] The clerk shall reject any statement, which contains any obscene, vulgar, profane, scandalous, libelous or defamatory matter, or any language which in any way incites, counsels, promotes or advocates hatred, abuse, violence or hostility toward, or which tends to cast ridicule or shame upon any person or group of persons by reason of race, color, religion or manner of worship, or any language or matter the circulation of which through the mails is prohibited by Congress. . . .' (Emphasis added.)
We first consider the matter of the costs for printing a candidate's statement in the voter's pamphlet. Section 10012.5, unlike section 6551, which specifically provides for the prepayment of filing fees, does not provide for prepayment of the charges for printing the candidate's statement in the voter's pamphlet and the services incurred in handling such pamphlet. The statute contemplates the prorating of the costs of such pamphlet after the costs have been incurred. It states that the agency 'may bill each candidate' and that each candidate 'shall be charged the same.' To 'bill' is 'to prepare a bill of [charges to customers or clients]'; 'to submit a bill of charges. . . .' (Webster's Third New Internat. Dict.) A 'bill' is 'an itemized account that states the separate costs of goods sold, services rendered, or work done. . . .' (Webster, supra.) To 'charge' [101 Cal.Rptr. 451] means 'to ask payment of (a person) . . . to fix or ask (a sum) as a fee or payment. . . .' (Webster, supra.) It is clear from the language of section 10012.5 that a prepayment of these charges is not contemplated. It is even more clear that such a charge may not be exacted as a condition for obtaining access to the ballot.
We do not believe that prepayment for such charges may be exacted on the basis that it may be difficult, if not impossible, to collect these charges after the candidate has qualified for the ballot or after the cost of the services has been ascertained. The statute contemplates that the obligation is one owing to the local agency as are so many other obligations for servides rendered by a state, county or municipality. It is significant to note that the local agency is not required to bill the candidates. It has the option to render this service without charge. We perceive, however, that the local agency may not exclude a candidate from preparing such a statement and including it in the voter's pamphlet because he is indigent. To do so would amount to an invidious discrimination on the basis of affluence and would amount to a denial of the equal protection of the laws for the reasons hereinabove stated. As we read and interpret section 10012.5, a candidate is entitled to have a statement which complies with the provisions of that section included in the voter's pamphlet and the clerk is required to inclue it therein without a requirement of prepayment. Whether the local agency chooses to bill the candidate for the prorata cost thereof is optional.
Adverting to the alleged partisan political matter respondent proposes to strike from Knoll's statement of qualifications, we hold that he may not ministerially do so in view of the provisions of section 10012.5. Although neither party affiliation nor membership or activity in partisan political organizations may be included in the statement of qualifications, apparently because the elective offics mentioned in the statute are nonpartisan, the statute does not authorize the county clerk or registrar of voters to strike such matter from the statement. It is doubtful that the county clerk or registrar of voters could reject the statement because it contains partisan political matters, since the statute specifically delineates the matters which warrant rejection and partisan political matters are not included among the matters specified. In any event, an issue has been tendered by the motion to dismiss as to the propriety of the subject statement. Knoll does not contest respondent's allegation that the subject statement is partisan and political. There can be no question that the statement objected to by respondent falls within the proscription of the statute since it unequivocally states that Knoll is a member of and engaged in the activity of a partisan political organization. It clearly violates the mandate of section 10012.5 and should be deleted from the statement.
We therefore deny respondent's motion to dismiss Knoll's petition and order as follows: That respondent strike from Knoll's statement of qualifications the partisan political matter hereinabove set out verbatim; that respondent place Knoll's name on the ballot as a candidate fot the office of supervisor of the 5th Supervisorial District of the County of Alameda at the primary election on June 6, 1972; and that respondent include Noll's statement of qualifications, sans the portion ordered deleted therefrom, in the voter's pamphlet without requiring the prepayment by Knoll of her prorata share of the cost of printing the statement of each candidate in the voter's pamphlet pursuant to section 10012.5.
We deem it expedient to point out that although the instant petition was filed on March 8, 1972, two days before the last day on which knoll could file her declaration of candidacy and her nomination papers, such late filing was neither dilatory nor an imposition on respondent registrar of voters. Knoll sought as early as February 15, 1972 to obtain nomination papers for the subject office and was told she could not obtain such papers without the payment of a filing fee notwithstanding her representation that she was a poor person and could not afford the fee. On February 22, 1972, Knoll filed a petition in the Supreme Court for a peremptory writ of mandate and for a declaratory judgment seeking an order compelling respondent to file her declaration of candidacy and her nomination papers without the payment of a filing fee or the pamphlet fee costs on the ground of indigency. On the same day the Supreme Court transferred the said proceeding to this court. Opposition to this petition was filed by respondent on March 1, 1972. On March 6, 1972, we denied the petition for writ of mandate on the ground that the relief prayed for by way of mandamus could not be granted before the filing date of March 10, 1972. On March 8, 1972, the instant petition was filed incorporating by reference all of the allegations of the petition for writ of mandate along with the affidavits and memoranda which accompanied that perition.
[101 Cal.Rptr. 452]SIMS, J., concurs.
ELKINGTON, Associate Justice.
I respectfully dissent.
I cannot believe that Elections Code section 6403 permits this sort of a summary disposition of important constitutional issues relating to the state's long accepted election laws. Our hastily deliberated decision upon its filing today, April 11, 1972, becomes final and beyond our reconsideration, or review by any other court. It now declares the law of this state. (See Matter of Snyder, 158 Cal. 218, 219, 110 P. 820; Donnellan v. Hite, 139 Cal.App.2d 43, 45, 293 P.2d 158.)
Zapata and Knoll sought to officially declare their candidacy for Alameda County Supervisors. Zapata did not live in the district which he sought to serve and was by law disqualified. Knoll had not been a qualified elector for the time required to hold such an office. They refused to pay the statutory filing fee. Their efforts being unsuccessful, these proceedings were started. The case was argued and submitted for our decision on Tuesday, March 28, 1972. In answer to our question we were told by counsel that in the opinion of respondent registrar of voters, Friday, March 31, 1972 was the last day on which the primary election ballot content could be settled upon, without possibly jeopardizing the election.
It is common knowledge that there is much official preparation for an election. Accurate ballots must be printed. Sample ballots and other information must be timely mailed to the voters. Unforeseen, or court created, delays could disrupt and even prevent the election, the time for which is fixed by law. 1 An aborted election is manifestly [101 Cal.Rptr. 453] unacceptable to our form of government.
It seems proper at this point to restate a commomplace of our law--no assertion of a constitutional right can be permitted to preclude the constitutional right of government to fundtion.
Other time-tested principles should be honored here. ' '[A] court must move with great caution in declaring an act of the Legislature unconstitutional, . . ." (People ex rel. Williamson v. Rinner, 52 Cal.App. 747, 758, 199 P. 1066, 1071.) And "A court will not decide a constitutional question unless such construction is absolutely necessary.' . . .' (Marin Municipal Water Dist. v. Dolge, 172 Cal. 724, 726, 158 P. 187, 188.)
In Green v. Jordan, 216 Cal. 318, 14 P.2d 297, the California Supreme Court, in mandate proceedings, was confronted with a problem similar to that which has been decided today. Relief was denided, the court later stating (pp. 318-319, 14 P.2d p. 297): 'The petition herein for an alternative writ of mandamus to compel the respondent to omit from the ballot to be used at the next general election the question of the adoption or rejection by the voters of the proposed initiative measure described in the petition was denied, in the exercise of the discretion of the court, for the reason that sufficient time was not deemed available to hear the matter and pass upon the many constitutional questions presented by the petition prior to the time the respondent is required by law to prepare the printed matter necessary to submit the question to the electors of the state. For the same reason the petition for a rehearing is denied. . . .' (Emphasis added.)
It must have been obvious to Zapata and Knoll--as it would have been to any court--that the registrar of voters would have declined, without filing fees, to accept their declarations of candidacy. They could in a more appropriate and orderly manner have sought an adjudication of the point they have now tardily made. A clear and wellknown exception to the principle that mandate does not lie to compel performance of a future act, is the rule that mandate does lie where it is clear that public officers 'do not intend to comply with their obligation when the time for performance arrives.' (32 Cal.Jur.2d, p. 130, Mandamus, § 10; see also Gage v. Jordan, 23 Cal.2d 794, 800, 147 P.2d 387; Imperial Mut. L. Ins. Co. v. Caminetti, 59 Cal.App.2d 494, 497-498, 139 P.2d 693; McMullen v. GlennColusa Irr. Dist., 17 Cal.App.2d 696, 700, 62 P.2d 1083.)
In my opinion, just as the court in Green v. Jordan, supra, 216 Cal. 318, 14 P.2d 297, in the exercise of its discretion declined to enter upon a profound constitutional inquiry against an election official's statutory deadline, we also should have exercised the discretion inherent in section 6403, and promptly dismissed the pending proceedings.
I now direct my discussion to the farreaching decision of my esteemed colleagues, and to what I believe is their erroneous interpretation of Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92.
Lifting an incidental and unrelated dictum of the Bullock v. Carter decision from a footnote (405 U.S. at p. 148, fn. 29, 92 S.Ct. 858), the majority here say, 'The term 'filing' fee has long been thought to cover the cost of filing, that is, the cost of placing a particular document on the public record.' (I have added the emphasis.) They then say 'thay when Bullock speaks [101 Cal.Rptr. 454] of 'reasonable filing fees' and a fee which a candidate could be expected to pay out of his own resources or from modest contributions, it is speaking of filing fees in this context.' (This emphasis is also mine.) It follows that they discerm Bullock v. Carter to say that a candidate's filing fee must be roughly equivalent to the cost of recording a deed, and placing it on the public record, an amount which in my experience varies somewhere between one and five dollars.
They then 'sum up the holding in Bullock thusly: A state or any of its subdivisions may exact a filing fee approximating the cost of processing a candidate's application for a place on the hallot on the basis that the serious candidate can be expected to pay such a fee from his own resources or through modest contributions. A state or its subdivisions may not, however, exact a filing fee which excludes a candidate from a place on the ballot upon the criterion of ability to pay as a condition therefor unless it also provides reasonable alternative means of access to the ballot.' 2
The majority then rule: 'Insofar as the California statutes providing for filing fees for candidates are in conflict with these principles, they are unconstitutional as a denial of the equal protection of the laws of the United States Constitution.'
As I interpret their decision the following is now the law of California:
1. The state, or its political subdivisions, may charge a candidate for office a filing fee;
2. The filing fee, regardless of the office sought, must approximate the usual modest cost of placing a document on public record;
3. If the state wishes to charge more than the cost of recording a document, it must provide some kind of a 'reasonable alternative means of access to the ballot' for those unable to pay such cost;
4. Since California's existing laws 'are in conflict with these principles, they are unconstitutional as a denial of the equal protection of the laws of the United States Constitution.' In other words, unless and until the Legislature may choose to remedy the situation, no filing fee may be charged any candidate for public office in California.
From my reading of Bullock v. Carter, I reach vastly different conclusions.
That case dealt with Texas statutes authorizing assessment of candidate's filing fees in amounts reaching $6,300 and $8,900, the latter 30 times the fee here at issue. Fees 'exceeding $5,000 [were] typical of certain county offices.' In some cases the filing fees equalled 32 percent and 76 percent, and even 99 percent (the latter 49 times the percentage here at issue) of the annual salary of the office. (Parenthetically we are dealing in the instant case with a filing fee of $295.76 for the office of Supervisor of Alameda County, 2 percent of the annual salary.)
The Ballock v. Carter court observed (405 U.S. at pp. 138-139, 92 S.Ct. at pp. 853-854): 'The size of the filing fees is plainly a natural consequence of a statutory system which places the burden of financing primary elections on candidates rather than on the governmental unit, and which imposes a particularly heavy burden on candidates for local office. . . .' Heavy emphasis was placed on what was called 'the large costs required by the Texas syatem.' It was concluded (p. 149 of 405 U.S., p. l859 of 92 S.Ct.): 'Since the State has failed to establish the requisite justification for this filing fee syatem, we hold that it results in a denial of equal protection of the laws. . . .' (Emphasis [101 Cal.Rptr. 455] added.) Nothing in Bullock v. Carter suggests that filing fees 1/30th or 1/49th those of the Texas 'filing fee system' would also be unreasonable and a 'denial of equal protection of the laws.'
The Bullock v. Carter court expressly declared no intention to 'cast doubt on the validity of reasonable candidate filing fees' in 'contexts' other than those of the Texas laws. It did not disapprove candidate limitlaws. resrictions; instead it said: 'In approaching candidate restrictions, it is essential to examine in a realistic light the extent and nature of their impact on voters.' (Emphasis added.)
The high court went on to say 'that a State has a legitimate interest in regulating the number of candidates on the ballot.' 'In so doing [the court continued], the State understandably and properly seeks to prevent the clogging of its election machinery, avoid voter confusion, and assure that the winner is the choice of a mgjority, or at least a strong plurality, of those voting without the expense and burden of run-off elections. Although we have no way of gauging thr number of candidates who might enter primaries in Texas if access to the ballot were unimpeded by the large filing fees in question here, we are bound to respect the legitimate objectives of the State in avoiding overcrowded ballots. Moreover, a State has an interest, if not a duty, to protect the integrity of its political processes from frivolous or fraudulent candidacies. . . .' (Emphasis added; p. 145 of 405 U.S., p. 857 of 92 S.Ct.)
The last above quoted language of Bullock v. Carter confirms earlier holdings of the United States Supreme Court, and others.
Bullock v. Carter cited with approval the case of Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554, 1971. Discussing a problem somewhat similar to that before us, the latter court stated (403 U.S., p. 442, 91 S.Ct., p. 1976, 29 L.Ed.2d, pp. 562-563): 'There is surely an important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization and its candidates on the ballot--the interest, if no other, in avoiding confusion, deception, and even frustration of the democratic process at the general election.' (Emphasis added.)
California's Supreme Court in Socialist Party v. Uhl, 155 Cal. 776, 790, 103 P. 181, 187, held that a statutory filing fee (which greatly exceeded the cost of placing a document on public record) 'is a reasonable restriction, and provides an orderly and systematic method by which the people may select their candidates for public office. The exaction of a fee tends to prevant an indiscriminate scramble for office, where it is fixed at an amount that will impose no hardship upon any person for whom there should be any desire to vote as a nomince for any office, and yet enough to prevent the wholeasale filing of petitions for nominations of any one, regardless of whether or not he is a desirable candidate. It is but a reasonable means adopted by the Legislature to regulate primary elections for the selection of candidates for public office. And the constitutional provision that no property qualifications shall be required of any person to vote or hold office is not violated by such provision as to the payment of a fee, but is a reasonable regulation prescribed by the Legislature on the wise assumption that any candidate who is of sufficient worth to stand before the people as a candidate for publis office, and whose candidacy calls for the payment of the fee required by the act, will be at no difficulty to pay the required amount. . . .' (Emphasis added.)
In McLean v. Durham County Board of Elections, 222 N.C. 6, 10, 21 S.E.2d 842, 845, it was said that a candidate's filing fee 'is only one of the reasonable means adopted by the Legislature to regulate primary elections for the selection of candidates for public office and to prevent an indiscriminate scramble for office and the wholesale filing of petitions for nomination regardless of fitness or qualification.'
[101 Cal.Rptr. 456]Speaking of primary elections the Supreme Court of Minnesota observed in State ex rel. Thompson v. Scott, 99 Minn. 145, 148, 108 N.W. 828, 829-830: 'What is a reasonable restriction upon the right to stand for office is a matter of opinion. Clearly, unless some restriction is thrown about primary elections, no advance would be made over the old system, the abuses of which it was sought to correct. To prescribe an orderly and systematic method by which the people may select their candidates for public office, is within the province of the Legislature, and apparently the exaction of a fee in filing as a candidate tends to prevent an indiscriminate scramble for office.'
In State ex rel. Riggle v. Brodigan, 37 Nev. 492, 496, 143 P. 238, 240, Nevada's Supreme Court held:
'It is within the province of the Legislature to consider whether, it only a nominal fee were required, the ballot might, in certain instances, be incumbered by the names of many candidates without chance of election, who, without expectation that they would be elected, might, in the interest of another candidate, run in certain localities where the opposing candidate is popular for the purpose of dividing his vote, and to exact a reasonable fee for the purpose of preventing, at least in some degree, such a result.'
I interpret Bullock v. Carter, on which the majority appear to exclusively rely, to find unreasonable, and extortionate and oppressive, 'the large costs required by the Texas system'--costs running to almost $10,000, and in some cases to over 99 percent of the public office's annual salary. It takes little imagination to unveil the true purpose of such charges. They were obviously designed to wholly discourage any opposition to political incumbents, even that of 'legitimate' and 'serious' candidates. It may not reasonably be concluded that Alameda County's 2 per cent ($297.76) filing fee is designed to, or does, prevent the candidacy of 'serious' and 'legitimate' 3 candidates.
Nothing can be clearer from Bullock v. Carter, and Socialist Party v. Uhl, supra (155 Cal. 776, 103 P. 181), and other authority that a state may not by its filing fees discourage the candidacies of 'serious' and 'legitimate' office seekers.
But equally clear is the message of those cases that filing fees may be fixed by statutes in such amounts as will: '[P]revent the clogging of its election machinery' and 'avoid voter confusion'; respect 'the legitimate objectives of the State in avoiding overcrowded ballots'; and 'protect the integrity of his political processes from frivolous or fraudulent candidacies.' (See Bullock v. Carter, supra, 405 U.S. at p. 145, 92 S.Ct. at 857.) Nor could the Supreme Court of this state have expressed itself more clearly when it sald: 'The exaction of a fee tends to prevent an indiscriminate scramble for office. . . .' (Socialist Party v. Uhl, supra, 155 Cal. at p. 790, 103 P. at p. 187.)
I entertain a shuddering thought of the implications of today's decision that there are no longer any political filing fees in this state, or if I misconstrue the words, that there are no filing fees for the poor until the Legislature shall fix a fee of a few dollars.
Unfortunately the world, or at least this state and county, has a generous share of publicity seekers, and those who would obtain ego or status gratification in placing their names widely before the public. And we have read or heard in the press media of threats and overt acts of others to disrupt the election process and the functions of government generally.
Some counties have voting machines which up to now have had reasonable but limited capacity for candidate's names. Other counties use paper ballots. Complaints [101 Cal.Rptr. 457] are even now heard from time to time of inordinately long and confusing ballots. Without experience we can only guess at the result, when for no fee or a nominal fee any person or at least any indigent person might file for public office. If, for instance, but one person in 50,000 should choose to run without cost for Mayor of Los Angeles (1960 census--2,479,015), the voters of that city would be faced with 50 names for that office alone. If this speculation is projected to all of the elective offices of the state and its counties, we engage in mental exercise not wholly dissimilar to consideration of the magnitude of light years in space and time.
It may well be that my concern is wholly unreasonable and unwarranted; I certainly hope so. But wiser heads than mine have suggested that unrestrained filing of 'frivolous or fraudulent candidacies' leads to 'overcrowded ballots,' 'voter confusion,' and the 'clogging of election machinery' (Burger, C. J., in Bullock v. Carter, supra); and that the absence of a substantial filing fee tends toward 'an indiscriminate scramble for office.' (Lorigan, J., in Socialist Party v. Uhl, supra.)
I do not present any views on the majority holding concerning petitioner Knoll's statement of qualifications. The time I have consumed on this case does not qualify me to do so. And I do not wish to encroach further on the deadline of the respondent registrar of voters, who I presume is patiently awaiting our decision so that he may get on with the business of preparing the ballot for his county's June 6, 1972 election.
I would adjudge the filing fee statute here at issue to be a vaild constitutional exercise of legislative discretion. I would have sooner dismissed these proceedings, and I would now affirm the decision of the registrar of voters not to accept petitioner's declarations of candidacy without the appropriate statutory filing fee.
'. . . The sixth paragraph of article IV, section 1 [of the state Constitution] requires that each voter be furnished with the text of all ballot measures and arguments for and against the measures. In the case of initiatives and referanda, the Secretary of State is to issue a press release at least 120 days prior to the election, inviting the submission of pro and con arguments for incorporation in the ballot pamphlets, which arguments must be received at least 110 days before the election. (El.C., secs. 1505, 1506.) We are advised that the State Printer's task of setting up, printing and binding an issue of 5 1/2 million ballot pamphlets requires in the neighborhood of 40 working days, of two twelve-hour shifts per day. The Secretary of State must furnish the ballot pamphets to the county clerks not less than 45 days before election, and the pamphlets are to be mailed to the voters 15 to 40 days before the election. (El.C., sec. 1515). Official ballots must be available for absentee voters 20 days before the election (El.C., sec. 5901), and the printing of official and sample ballots must commence substantially in advance of that time.
'It is true that in deference to a constitutional mandate for the appearance of a measure on the ballot, substantial compliance with the statutory time table will suffice. (Hart v. Jordan, supra, 14 Cal.2d at 292, [94 P.2d 808].) Nevertheless, the Constitution also requires that the ballot pamphlets be prepared and distributed to the voters in advance of the election. The timely fulfillment of this requirement cannot be prevented or even jeopardized by reason of the tardy arrival of a single measure. If a petition qualifies so late that pro and con arguments cannot be secured and the measure, together with the arguments, incorporated in the ballot pamphlet in sufficient time to allow printing and distribution to the voters, then as a matter of sheer factual necessity the measure may not be included on the ballot. The period for qualification thus expires a reasonable time before the special election. What is a reasonable time depends in each instance upon the period required by the Secretary of State for the performance of his duties with relation to the election, and chiefly the time required to prepare, print and distribute the ballot pamphlet. (See, Green v. Jordan, 216 Cal. 318, [14 P.2d 297].) . . .'