Opening Brief, Rawls v. Zamora

ALEXANDER E. RAWLS, Plaintiff and Appellant,

EVONNE ZAMORA, Registrar of Voters of Santa Clara County, as administrator, etc., Defendant and Respondent

H024372 (appealed from Santa Clara County No. CV805403)

Appeal of order and judgement denying complaint for declaratory relief and petition for writ of mandate issued by Santa Clara County Superior Court Judge F. Biafore on 2/21/02.

To determine the validity of California Elections Code §13.5 and California Government Code §24004.3, candidate restrictions for the office of county sheriff.

POINT 1: The appropriate test of constitutionality is the Anderson balancing test, which subsumes the "fundamental interest" strand of equal protection law.

POINT 2: In reviewing election laws, the courts are not to give the same deference to the judgement of the legislature as in other cases.

SECTION II: State interests served by the restrictions on candidates for sheriff

POINT 3: The state interests that, according to precedent, are to be weighed in the Anderson balancing test all have the objective of facilitating the accurate expression of the will of the people p.

POINT 4: None of these precedented state interests are importantly served by the requirement that candidates for sheriff be current or recent members of law enforcement.

POINT 5: The requirement that candidates for sheriff be current or recent members of law enforcement is sweepingly discriminatory.

POINT 6: The gap between civilian and law enforcement views of proper law enforcement policies is not hypothetical but is real and extreme.

POINT 7: Requiring candidates to be members of the presided over arm of government directly attacks the accountability of government to the people.

POINT 8: The Anderson balancing test rejects the requirement that write-in candidates for sheriff be current or recent members of law enforcement.

POINT 9: The Anderson balancing test rejects the limitation of the ballot to current or recent members of law enforcement.

POINT 10: The unconstitutionality of the restrictions on candidates for sheriff can also be seen by using earlier rulings of unconstitutionality as benchmarks.

POINT 11: The availability of write-in candidacy would not ameliorate the harms caused by the ballot restriction.

POINT 12: The existence of a compelling state interest does not imply a compelling state interest in limiting candidacy to the representatives of that interest.

POINT 13: If credence is given to unprecedented state interests, the state's interest in a candidate restriction still must be assessed only after the competence of the voters to judge the candidates for themselves has been taken into account, which drastically reduces their measure.

POINT 14: Striking the restrictions on candidates for sheriff is consistent with the viability of many other candidate restrictions.

POINT 15: "Fundamental interests" can also be located by (if not in) the guarantee clause.

This appeal is being made from a final order and judgment issued by California Superior Court Judge Joseph F. Biafore on February 21, 2002 in Santa Clara County, denying the plaintiff's complaint for declaratory relief and petition for writ of mandate. Authority to appeal from such a judgment is granted under California Code of Civil Procedure, § 904.1 (since none of the exclusions stated therein apply).

THE CAUSES OF ACTION, RELIEF SOUGHT IN THE TRIAL COURT, THE JUDGEMENT APPEALED FROM AND THE ISSUES ON APPEAL

The plaintiff (and author of these words) sued in California Superior Court, County of Santa Clara, to challenge the constitutionality of California laws requiring that candidates for sheriff be current or recent members of the arm of government that they would preside over (law enforcement). The challenged laws are California elections code §13.5 and California government code §24004.3, texts of which can be found on pages 29 and 34 of the Clerk's Transcript of the Superior Court case.

These laws caused the Plaintiff's application for write-in candidacy in the 2002 sheriff's race to remain incomplete (all other requirements for candidacy were satisfied and are on file at the office of the Santa Clara County Registrar of Voters). With the plaintiff's candidacy filing incomplete, Evonne Zamora, in her capacity as the Santa Clara County Registrar of Voters, was not going to instruct county poll workers to count write-in votes in the plaintiff's name in the March 5^th election. Plaintiff contended in Superior Court that this failure to count his votes, or to seat him should he receive the most votes, constituted an unconstitutional neglect of duty, since the ban on civilian candidates discriminates against seriously contending candidates, viewpoints and sources of merit, all in violation of equal protection of First Amendment rights to effective political participation (as well as being unconstitutional on other grounds).

According to Elections Code §13314, such a neglect of duty is grounds to seek a writ of mandate, so long as issuance of the writ would not substantially interfere with an election. (See Clerk's Transcript p. 39.) On this grounds, the plaintiff sued Evonne Zamora in her capacity as administrator of the laws as they pertain to elections, asking that the offending laws be declared unconstitutional and that the respondent be ordered to place him on the list of qualified write-in candidates (which would not interfere with the election, since the list of qualified write-ins had not yet been issued). In addition to challenging the restriction on write-in candidates, the plaintiff also claimed that the requirement of current or recent law enforcement background was violating his constitutional rights by barring him from being able to satisfy the requirements for appearing on the ballot (which restriction is also enforced by the respondent). Accordingly, the plaintiff asked the court to declare the restriction on ballot access unconstitutional along with the restriction on write-in candidacy.

Elections Code §13314 (3) asserts that petitions under §13314 are to take priority over all other matters. Thus on February 21^st 2002, the day after suit was filed in Santa Clara County Superior Court, a ten or twelve minute hearing took place in the chambers of Superior Court Judge Joseph F. Biafore, most of which was spent sorting out what it would take to not interfere with the election, whether there was time to schedule a later hearing, and whether all parties were ready to proceed with the case on the spot (we were).

No transcript of the hearing was made, but it can be described in three sentences. Plaintiff was allowed approximately one minute for opening remarks, which was all he needed to make a strong prima facie case for a high level of scrutiny. Supreme Court precedents call for high levels of scrutiny in ballot restriction cases, and requiring that candidates be drawn from the presided over arm of government itself constitutes an unprecedented assault on the accountability of government to the people. Deputy County Counsel Kathryn A. Berry (S.B. #99325), representing the Defendant Evonne Zamora, said she had a precedent that denied that a high level of scrutiny was called for in the review of candidate restrictions, at which point Judge Biafore issued his judgement, ruling against the plaintiff on all causes at suit, which judgement is here being appealed in its entirety.

All causes of action remain. Standing for appeal exists, even though the election is passed, because the Plaintiff seeks to run in the next sheriff's election, hence the candidate and ballot restrictions still stand in his way. Pleas are changed in that, with the election past, there is no longer an opportunity to be validated as a write-in candidate, or placed on the ballot. Thus plaintiff only now asks that the candidate and ballot access restrictions be stricken as unconstitutional, and for such other and further relief as the court may deem proper.

The standard of review is de novo, since the issues to be resolved are matters of constitutional law. Some issues of fact are relevant to the questions of constitutionality, but none were taken up or contested at the superior court level.

1. All qualifications for write-in candidacy were met by the plaintiff except for the requirement of law enforcement background. Plaintiff is a resident of California over 35 years of age and is registered to vote in Santa Clara County. (Clerk's Transcript, p. 2.) Plaintiff's declaration of candidacy was filed 1/23/02 and nomination signatures were submitted and verified on 2/5/02, before the 2/19/02 deadline.

All other statements of fact in the case are references to general facts supportive of the constitutional arguments made and are not specific to this case. Very briefly, they are:

2. Since the "shall issue" Concealed Carry Weapons movement started sweeping the nation in 1987, over thirty states now deny police chiefs and county sheriffs the discretion to keep law abiding citizens from bearing arms, bearing witness to the wide gap asserted by the Plaintiff between law enforcement and civilian views of proper law enforcement policy. Further, these laws have had a tremendous crime reducing effect, indicating that it is the civilian viewpoint on gun rights that is correct. (These matters of fact were raised, and authorities cited, in the Plaintiff's Superior Court brief. See pages 15-16 of the Clerk's Transcript.)

3. After current Santa Clara County Sheriff Lauri Smith first won office in June of 1998, she destroyed the careers of all of her electoral opponents, who because of the challenged laws were all from within the sheriff's department and hence were under Smith's power after she won. See "To the Victor go the Spoils," San Jose Mercury News, 12/13/98. (This example was not raised in the Superior Court brief, but plaintiff presumes it constitutes the kind of general fact, illustrative of relevant constitutional principles, that may still be introduced as argument.)

4. Sheriff Smith ran unopposed in the 2002 elections. See, "Incumbents in Santa Clara County find few challengers lining up to race," San Jose Mercury News, 12/16/01.

5. Lauri Smith has stated her opposition to the issuing of gun permits. As reported in The Palo Alto Weekly, 3/6/98, page 6: "Smith said she is not in favor of handing out more gun permits…" This opposition to the right to bear arms is noted in the plaintiff's Superior Court brief, on page 14 of the Clerk's Transcript.

POINT 1: THE APPROPRIATE TEST OF THE CONSTITUTIONALITY IS THE ANDERSON BALANCING TEST, WHICH SUBSUMES THE "FUNDAMENTAL INTEREST" STRAND OF EQUAL PROTECTION LAW.

This constitutional challenge proceeds under the balancing test for state election laws articulated by the Supreme Court in Anderson v. Celebrezze, 460 U. S. 780, 789 (1982). The specific interests that are to weigh in this balancing test, and which will be the substance of the arguments of this brief, were articulated by the Court prior to Anderson, through its development of the "fundamental interests" strand of equal protection rulings. It is appropriate, then, to start by summarizing the line of precedent from equal protection law to the Anderson balancing test.

The Court first located political rights in the Fourteenth Amendment's guarantee of "equal protection." No right to vote is stated in the U.S. Constitution, but whatever qualifications for voting are imposed must satisfy equal protection and this limits what qualifications can be imposed. (See Harper v. Virginia Board of Elections, 383 U.S. 663, 665, (1966). Relevant quote in footnote (1) below.)

At the time of Harper, the Court already had in place a system for interpreting equal protection that it had set forth in Korematsu v. United States, 323 U.S. 214, (1944). In Korematsu the Court demarked "suspect classifications" (beginning with racial classifications) which, when they appeared in the law could be presumed to do harm to equal protection and hence would automatically trigger "the most rigid scrutiny" or "strict scrutiny" on equal protection grounds. Once strict scrutiny is triggered, the Court held that a classification must to be driven by "pressing public necessity" in order to stand constitutional muster (at 216). In later cases, the triggering of "strict scrutiny" was held to require that a law be "necessary" to a "compelling governmental interest" in order to stand.(2)

In Harper (above) the Warren Court took the "strict" or "rigid" scrutiny test for equal protection that began with Korematsu and applied it, not to "suspect classifications," but to restrictions on "fundamental rights and liberties" generally.(3) Subsequent rulings declined to expand broadly on the opportunity to find fundamental rights and liberties that would trigger strict scrutiny, but some narrow such "fundamental interests" have become firmly established, particularly interests in enfranchisement, and in the subjects of this complaint: candidacy requirements and access to the ballot.

Following this line of precedent, the Court ruled in Williams v. Rhodes, 393 U.S. 23 (1969), that ballot restrictions "place burdens on two different, although overlapping kinds of rights—the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively" (at 30). Along the lines of "fundamental interests," the Court described these rights as "among our most precious freedoms" (at 30). It then ruled that, when election laws impose unequal burdens on these First and Fourteenth Amendment rights (the Fourteenth applying the First to the states), the strict scrutiny test is to apply (at 30-31).(4)

In Anderson v. Celebreeze (at 786-789) the Court decided that the two step process of the strict scrutiny test—a trigger and a fixed hurdle then to be cleared—was too crude an instrument. It cited Williams v. Rhodes to assert that election laws run up against First and Fourteenth Amendment rights, and it cited Storer v. Brown, 415 U. S. 724, 730 (1974) to acknowledge that "there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic process." With high stakes on both sides, a trigger and hurdle test was considered insufficient. Thus while the Court held that "the State's important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions" (Anderson, supra at 788), it declared that the constitutionality of election laws could only be determined by a complete weighing of the interests on both sides:

Constitutional challenges to specific provision of a State's election laws therefore cannot be resolved by any "litmus paper test" that will separate valid from invalid restrictions. Storer, supra, at 730. Instead, a court must resolve such a challenge by an analytical process that parallels its work in ordinary litigation. It must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgement, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional. (Anderson, supra, at 789.)

Lastly, the Court in Anderson also made one other change. It elected to weigh First And Fourteenth Amendment interests directly, instead of indirectly, through the equal protection clause. In doing so, the court made clear that its intention was not to leave behind, but to subsume, the earlier equal protection approach to the protection of "fundamental interests" (see the Majority's footnote 7, at 786).

POINT 2: IN REVIEWING ELECTION LAWS, THE COURTS ARE NOT TO GIVE THE SAME DEFERENCE TO THE JUDGMENT OF THE LEGISLATURE AS IN OTHER CASES.

There are two reasons for this. First, election laws are directly concerned with the execution of rights and hence fall directly within the purview of the Court. Second, the status of elected officeholders as representatives of the people is premised on the fairness and neutrality of the election laws. When this fairness is in question, that status cannot be deferred to.

On the first point, the Court in Korematsu, supra, was explicit that its reason it set up a trigger and hurdle test for the constitutionality of internment, rather than conducting a thorough investigation of the merits of the proclaimed justifications for internment, was because the merits of the proclaimed justifications did not fall under its purview. They were matters of military calculation properly left to the "war-making branches of government" (at 218-19). Thus while it was appropriate for the Court to make sure the government had plausible and sufficiently weighty reasons for burdening rights, it declined to judge the merits of those reasons in detail.

In Anderson, in contrast, when the Court laid out the interests at stake (at 788), they all were questions of rights. The harms to individuals were all harms to political rights, and the states interests were all interests in facilitating the accurate expression of the will of the voters, which are also interests in political rights. Since political rights are all matters on which the Court is empowered to speak authoritatively, it is appropriate for the Court to judge in detail the merits of election laws in question to see if they do more harm than good to political rights, and this what the Court did, laying out the Anderson balancing test.

The second point was articulated by the Court in Kramer v. Union Free School District No. 15, 395 U.S. 621, 626 (1969). "Any unjustified discrimination in determining who may participate in political affairs or in the selection of public officials undermines the legitimacy of representative government." Thus not only must such laws be subject to "close and exacting examination," but they undermine deference to the legislature. The "presumption of constitutionality and the approval given 'rational' classifications in other types of enactments are based on an assumption that the institutions of state government are structured so as to represent fairly all the people. However, when the challenge to the statute is in effect a challenge of this basic assumption, the assumption can no longer serve as the basis for presuming constitutionality," (at 628).

It is true that the candidacy restrictions I am complaining about do not restrict candidates for the legislative branch and therefore do not directly undermine the legitimacy of the legislature. But the legislature cannot shield the executive branch of government from accountability any more than it can shield itself from accountability. One branch of government cannot do the other's dirty work for it and have each still be held pure just because neither is doing its own dirty work.

On this point, notice that the Court in Kramer was inclusive when it called for close and exacting examination of legislative acts that impose "unjustified discrimination in determining who may participate in political affairs or in the selection of public officials." The Court's use of the broad phrase "political affairs" means that its critique was not limited to barriers to legislative office. It was concerned, not just with attempts by legislatures to shield themselves from accountability, but by their attempts to shield any part of government from accountability, and it held all such provisions to be most threatening and dangerous to the equal protection of First Amendment rights, demanding the strictest scrutiny.

Thus the court in this appeal should not feel restrained by any reluctance to review whatever rationales may be thought to have gone into the state's deliberations in passing the challenged restrictions. All such reasoning is fully under the purview of the courts, which are called upon by the Supreme Court to scrutinize that reasoning in detail to insure that all harms to political rights are necessary to even greater state interests.

SECTION II: STATE INTERESTS SERVED BY THE RESTRICTIONS ON CANDIDATES FOR SHERIFF

POINT 3: THE STATE INTERESTS WHICH, ACCORDING TO PRECEDENT, ARE TO BE WEIGHED IN THE ANDERSON BALANCING TEST ALL HAVE THE OBJECTIVE OF FACILITATING THE ACCURATE EXPRESSION OF THE WILL OF THE PEOPLE .

All of the Supreme Court's rulings on candidate and ballot restrictions assert either implicitly or explicitly that the legitimate purpose of such restrictions is facilitate the accurate expression of the will of the voters. In Lubin v. Panish, U. S. 415, 709, 714, (1973), the Court held that a legitimate purpose of candidate restrictions was to protect "the integrity of the electoral system from the recognized dangers of ballots listing so many candidates as to undermine the process of giving expression to the will of the majority." Similarly in Reynolds v. Sims, 377, U. S. 533, 562 (1964), where the Court held that "the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system."

Various restrictions can serve the goal of facilitating the accurate expression of the will of the people. Thus in Munro v. Socialist Workers Party, 479 U. S. 189, 194-195, (1986), the Court recognized the States' interest in avoiding "voter confusion, ballot overcrowding, or the presence of frivolous candidacies." Similarly in Lubin v. Panish (supra at 713-15), the Court recognized the States' interest in setting up some hurdles to candidacy that would distinguish "serious" from "frivolous" candidates to curb "ballot flooding." The allowed restrictions are those necessary to if elections are "to be fair and honest," and characterized by "order rather than chaos" (Storer, supra, at 730).

What is to be avoided are restrictions that discriminate between different serious views, candidates and sources of merit. According to Anderson (supra, at 788), only "reasonable, nondiscriminatory restrictions," are presumed to pass constitutional muster. In U. S. Term Limits v. Thornton, 514 U. S. 779, 794 (1995), the Court hammers repeatedly the principle that the door is to be "open to merit of every description," (citing Powell v. McCormack, 395 U. S. 486, 540, n74 (1973), quoting The Federalist, No 52, at 326 (Madison)). Neither did the Court strike down federal term limits only because there are already qualifications for federal representatives set down in the Constitution. Rather, it explicitly relied as well on the general principle that restrictions are not to discriminate between sources of merit, in accordance with what it held to be "the fundamental principle of our representative democracy… that the people should choose whom they please to govern them" (Thornton supra, at 795, again citing Powell, supra, at 547).

But discrimination cannot be eliminated entirely. "Each election law inevitably affects—at least to some degree—the individual's right to vote and his right to associate with others for political ends" (Anderson, supra, at 788). Thus in trying to set up election rules that elicit an accurate expression of the will of the people, there is a tension. Any effect of keeping frivolous candidates out promotes accurate expression of the will of the people, while any discrimination against serious candidates, by undermining "the right to elect legislators in a free and unimpaired fashion" (Reynolds, supra), works against the accurate expression of the will of the people. Thus challenge is to come up with restrictions that keep out frivolous candidates while minimizing discrimination against serious candidates.

This is the nub of the balancing that a court is to address with the Anderson balancing test. First, is the discrimination incurred by a particular restriction necessary? ("[The Court] also must consider the extent to which [a state's] interests make it necessary to burden the plaintiff's rights," Anderson, supra.) Second, when burdens are necessary to facilitate the accurate expression of the will of the people, are the benefits in this direction great enough to outweigh the specific harms done to the rights of individuals?

POINT 4: NONE OF THESE PRECEDENTED STATE INTERESTS ARE IMPORTANTLY SERVED BY THE REQUIREMENT THAT CANDIDATES FOR SHERIFF BE CURRENT OR RECENT MEMBERS OF LAW ENFORCEMENT.

Of the State interests that are recognized by Supreme Court precedent—honesty, fairness and order, with an uncluttered ballot, achieved through non-discriminatory hurdles raised against frivolous candidates (all pursuant to the accurate expression of the will of the voters)—none are significantly served by the challenged candidate restrictions. Write-in candidates cannot possibly clutter the ballot. They are not on the ballot. As for the restriction on access to the ballot, this is superfluous as far as the purpose of weeding out clutter and frivolous candidates because there are already mechanisms in place for all California elections to deal with these issues.

This was the subject of Lubin, supra. California filing fees equal to 1% of the salary of the office sought were held by the Court to serve the state interests that are recognized by precedent, but to unnecessarily "exclude some potentially serious candidates from the ballot without providing them of any alternative means of coming before the voters,"(at 718). Thus the state, to comply with its setback in Lubin, instituted an alternative mechanism whereby candidates could demonstrate their seriousness by collecting "signatures-in-lieu" of the filing fee (California Elections Code §8106). If this system is reasonably adequate to keep frivolous candidates out of every other office, it is reasonably adequate to keep frivolous candidates out of the Sheriff's race. Thus the marginal benefit, in terms of the weeding out of frivolous candidates, that can be attributed to the sheriff's restriction must be small. Frivolous candidates are already weeded out.

What about the state's interest in "order"? Could limiting the ballot to members of government itself be necessary to prevent "splintered parties and unrestrained factionalism," (Storer, supra). Such devolution could impair the accurate expression of the will of the people. But any concern about splintered ballots is vitiated, not just by the presence of other mechanisms to keep out ballot clutter, but also by the fact that California already has provision for a runoff in the sheriffs race, at little additional expense or burden, if no candidate gets a majority of the votes. This is a product of the the fact that sheriff is a non-partisan office. If there is no outright winner in the statewide primary, a runoff can be held in the general election in November, with no need to run an election that would not otherwise have been run.

What about "order" in the sense that limiting the ballot to members of the incumbent regime actually tends to bring about order: the old Soviet sense? The Court in Storer acknowledged a legitimate state interest in "political stability," (at 736), but in Anderson (at 801-3) and in Williams (at 32) it rejected stability as a justification when the restrictions in question tended to create monopoly advantage and undermine accountability to The People. This is exactly the result when the law enforcement establishment is able to limit the ballot to members of this arm of government.

POINT 5: THE REQUIREMENT THAT CANDIDATES FOR SHERIFF BE CURRENT OR RECENT MEMBERS OF LAW ENFORCEMENT IS SWEEPINGLY DISCRIMINATORY.

If the state does not try to minimize discriminatory effects, it can easily come up with restrictions that will keep out different kinds of frivolous candidates. The requirement that candidates for sheriff be current or recent members of law enforcement is a perfect example. Since this restriction bars 99.9% of the population from the ballot, it surely must be blocking what would otherwise be some frivolous candidacies. It may even eliminate frivolous candidacies entirely. But it does so at the price of a sweeping discrimination against the entire civilian population, out of which serious candidates could be expected with regularity to emerge.

True, the mere fact of broad exclusion does not imply broad discrimination against serious candidates. Consider the requirement that candidates for county assessor be Certified Public Accountants. It may well be the case that the range of policy disagreements in the field of property assessment are all technical issues internal to the field of professional CPA's. The possibility of serious candidates from outside the field could never be excluded completely, but if such candidates are rare enough then the harms from excluding them may be small compared to the beneficial service done by the restriction in keeping frivolous candidates out. Thus the restriction on county assessors (at least the restriction on access to the ballot) might well, and probably does, pass the Anderson balancing test.

The situation is far different in races for sheriff. First, the sheriff has wide discretionary authority to set law enforcement priorities. These are not just technical matters, limited to a narrow field of expertise, but are broad policy questions about which there can be wide disagreement and about which a great many people outside of law enforcement have intelligent opinions. Second, the sheriff sets the standards of behavior which law enforcement officers are to follow in their interactions with the public. To only allow the law enforcement side of this interaction to be represented on the ballot would be like requiring that candidates for district attorney not just be members of the bar, but be drawn only from the prosecutor's office. Just as the main contending viewpoints in races for district attorney are the prosecution and the defense, the main viewpoints to be represented in races for sheriff are the law enforcement view of civilian/law-enforcement interactions and the civilian view of civilian/law-enforcement interactions. To ban one of these viewpoints from the ballot constitutes sweeping discrimination against serious candidates, views and sources of merit.

While Supreme Court precedent requires that restrictions facilitate the accurate expression of the will of the people, the challenged restrictions limit what the people are allowed to choose, and in the most audacious fashion: NO CIVILIAN VIEWPOINTS ALLOWED!

POINT 6: THE GAP BETWEEN CIVILIAN AND LAW ENFORCEMENT VIEWS OF PROPER LAW ENFORCEMENT POLICIES IS NOT HYPOTHETICAL BUT IS REAL AND EXTREME.

The United States is right now in the midst of a titanic electoral struggle between civilian and law enforcement views about correct law enforcement policies and priorities. Over the last fifteen years, over half the states have stripped their law enforcement authorities of the discretionary power to deny Concealed Carry Weapons permits by passing "shall issue" CCW laws.(5) This legislative revolution demonstrates a huge gap between civilian and law enforcement views, with the civilian view proving to be the majority view in most states. Studies of the impact of "shall issue" laws clearly demonstrate that the civilian view is also right.(6)

California is not yet a "shall issue" state, leaving sheriffs with the discretionary power over gun rights that is at the heart of the divergence between civilian and law enforcement viewpoints.(7) In fact, the Plaintiff was campaigning on a "shall issue" platform, offering the people a chance to vote for someone who will uphold his oath office to enforce their constitutional right the keep, and bear, arms. By excluding civilian viewpoints, the offending laws have a grave tendency to deny the civilian viewpoint (very possibly the majority viewpoint) access to the ballot on this most contended issue. This has been borne out in the last two races for Sheriff of Santa Clara County. All candidates in the 1998 election were staunchly anti-gun and staunchly against granting Concealed Carry Weapons permits. The '98 winner, Lauri Smith answered a reporter's question about the Plaintiff's proposed policy of granting CCW permits by rejecting the idea, and she has earned a reputation for denying virtually all applications.(8)

Certainly it is possible for members of law enforcement to share the civilian tendency to be in favor of gun rights. Thus the civilian viewpoint could still be in some degree represented by non-civilians. But that still leaves the harm to the First Amendment rights of particular candidates when serious candidates and sources of merit are excluded from the ballot, and it harms those who would vote for those candidates or sources of merit. To say that banning civilian viewpoints does not do grave harm because non-civilians can represent civilian viewpoints is like saying that banning Democrats from the state legislature would be harmless because on any issue there are votes from both sides of the aisle. The division between civilian and law enforcement viewpoints has proven to be the great division of opinion over correct law enforcement policy. To exclude one side from the ballot constitutes a sweeping exclusion of what would be seriously contending viewpoints.

POINT 7: REQUIRING CANDIDATES TO BE MEMBERS OF THE PRESIDED OVER ARM OF GOVERNMENT DIRECTLY ATTACKS THE ACCOUNTABILITY OF GOVERNMENT TO THE PEOPLE.

Before the balancing test can be applied, there is still another class of harms to account. Court precedent in election cases focuses on harm to the political rights of those serious candidates who are discriminated against and on the rights of voters to have their views represented on the ballot. But when elections are limited to members of the presided over arm of government itself, First and Fourteenth Amendment political rights are attacked in a qualitatively different degree. Such limitations directly attack the accountability of government to the people and even raise the threat of usurpation.

If all candidates are required to have undergo training within and made their careers within the law enforcement establishment, then the incumbent sheriffs, who administer that establishment, have the opportunity to weed out opposing views. Not only can they suppress the rise of subordinates who do not agree with them, but they can also retaliate against those who run against them, all of which excludes opposing viewpoints from the ballot. How seriously should these concerns be taken? Just take a look. Our democracy has in fact been usurped.

After Laurie Smith became sheriff of Santa Clara County in 1998 she fired one of the two men who had run against her and busted the other down three ranks, chopping his salary in half. (9) She had this power over them because, thanks to the ballot restriction, all of her opponents were fellow members of the department. Not only is this situation predictable, it is virtually guaranteed by the further election code requirement that candidate be registered to vote in the district they are running for office in.(10) Not surprisingly, after Smith beheaded her defeated opponents in 1998, she ran unopposed in 2002.(11) One would have to be awfully naïve to think this was a coincidence. How many other sheriffs, after having successfully lobbied the legislature to ban their civilian electoral competition, now sit like third world dictators, as Lauri Smith does, running unopposed on the strength of their threat to destroy the careers of any who challenge them? The answer is unavoidable: as many as want to.

The power that winners in sheriff's races have over their electoral opposition also speaks to the possibility, raised above, that some members of law enforcement may share the civilian tendency to favor gun rights. If someone from the department were to run against Laurie Smith on a gun rights platform, the consequence, should he lose, would be firing or the destruction of his career. Smith has already proven that by destroying everyone who has run against her. A law that handicaps all potential opposition candidates with the threat of firing if they do not prevail is highly discriminatory between incumbent and opposing views. It is hard to imagine a more direct attack on the accountability of government to the people.

POINT 8: THE ANDERSON BALANCING TEST REJECTS THE REQUIREMENT THAT WRITE-IN CANDIDATES FOR SHERIFF BE CURRENT OR RECENT MEMBERS OF LAW ENFORCEMENT.

The restriction on write-in candidates does not in any way serve any of the state interests that are recognized by Supreme Court precedent for election law cases. There is no issue of ballot clutter with write-in candidacies, and having a majority of voters write-in a candidate's name is the clearest possible demonstration of the seriousness of a candidacy and of the will of the people. However much randomness might enter when voters are picking from amongst names on a ballot, there is no randomness in writing a name onto a ballot, which requires a planned intent. A write-in victory is a clearer expression of the will of the people than a victory between contenders on the ballot. Thus refusing to allow write-in candidates from outside of the presided over arm of government, and refusing to seat such candidates should a majority of voters write in their names, is actually in direct contradiction to the state's interests in facilitating the will of the voters.

This harmful effect in terms of the state's own interests cannot offset any harms to political rights, never mind the complete discrimination that the write-in restriction inflicts on the political rights of serious candidates from outside of law enforcement, leaving them no way at all to come before the voters, annihilating the First and Fourteenth Amendment rights of they and their associates to associate for political purposes and to cast votes effectively (POINTS 5-6). To make matters worse, requiring candidates to be current or recent members of law enforcement directly attacks the accountability of the government to the people and even raises a threat of usurpation, which in important measure seems to have already been consummated (POINT 7). Thus the challenged restrictions fail the Anderson balancing test and should be declared unconstitutional on that grounds.

POINT 9: THE ANDERSON BALANCING TEST REJECTS THE LIMITATION OF THE BALLOT TO CURRENT OR RECENT MEMBERS OF LAW ENFORCEMENT.

The case here is only slightly different than for write-in candidates. The issues of obscuring the ballot with frivolous candidates arises, but that concern is already addressed by other, non-discriminatory, mechanisms. Altogether the state's interests in the restriction are slight (POINTS 3-4) while the harms to the political rights of individuals, and the harm to the accountability of government, are extreme, sweeping and unprecedented (POINTS 5-7). Thus the challenged restrictions fail the Anderson balancing test and should be declared unconstitutional on that grounds.

POINT 10: THE UNCONSTITUTIONALITY OF THE RESTRICTIONS ON CANDIDATES FOR SHERIFF CAN ALSO BE SEEN BY USING EARLIER RULINGS OF UNCONSTITUTIONALITY AS BENCHMARKS.

In addition to conducting the Anderson balancing test block by block as above, it is also possible to use earlier judgements of unconstitutionality as benchmarks. Here the restriction on candidates for sheriff can be seen to do more harm than other restrictions that were ruled unconstitutional while serving no greater state interests.

In Lubin, supra, the Court overturned a fairly modest monetary hurdle—candidate filing fees that ranged from $192 for State Assembly candidates to $982 for candidates for Governor (at 710)—because the filing fees did not allow an alternative way for serious but penurous candidates to reach the ballot. The legitimate purpose in the present case is the same as in Lubin: to weed out frivolous candidates, but the discriminatory effect is far greater. As in Lubin, there is no alternative way around the restriction (since the restriction also applies to write-in candidates) but the restriction is far more sweeping, applying not just to the penurous, but to everyone outside of the presided over arm of government. If the purpose of helpfully weeding out frivolous candidates and ballot clutter could not justify the possibility of discriminating against the penurous, it certainly cannot justify discriminating against the entire civilian population.

The same kind of a fortiori argument can be based on the Court's ruling in Williams v. Rhodes (supra). In Williams the Court made what might be paraphrased as an "if it ain't broke, don't break fundamental rights and interests to fix it," argument. Ohio had previously allowed candidates on the ballot if they collected the signatures of 1% of the electorate. The Court struck down the raising of this requirement to 15% on the grounds that, while it might have some further effect in guaranteeing the seriousness of candidates, it also presented a tremendous hurdle that could easily exclude serious candidates. The clincher was that there had been no particular problem of frivolous candidates obscuring the ballot when the requirement was 1%. Thus the grave injuries to First Amendment rights were to fix a non-problem, which the Court rejected as unjustified (at 33).

The same analysis applies in the present case. Before the California restriction on candidates for sheriff, no candidate for sheriff in the history of the nation had ever been required to be a current or recent member of law enforcement, and this is still the case throughout almost the entire rest of the nation, with no apparent untoward effect. (Plaintiff once heard that a couple of other states did follow the California example, but he cannot recall which.). As in Williams, fixing what is not broken cannot be a justification for imposing grave First Amendment harms. This conclusion is also implied by the necessity element of the Anderson balancing test: "the Court… also must consider the extent to which [a state's] interests make it necessary to burden the plaintiff's rights" (supra). Fixing what ain't broken is not a necessity.

Just as the discrimination in the present case far exceeds the discrimination that was rejected in Lubin, so too it exceeds the incremental discrimination that was rejected in Williams. If fixing what is not broken cannot justify raising signature requirements it cannot justify limiting the ballot to members of the government.

POINT 11: THE AVAILABILITY OF WRITE-IN CANDIDACY WOULD NOT AMELIORATE THE HARMS CAUSED BY THE BALLOT RESTRICTION.

If the write-in candidacy restriction is stricken, could the subsequent availability of write-in candidacy provide sufficient avenue of political participation to ameliorate the harms to fundamental interests caused by the discriminatory ballot restriction? In U. S. Term Limits, supra, at 830-31, the Court denied such a claim, noting that having to run as a write-in candidate is an extreme disability. The Court took the same position in Lubin v. Panish, supra, footnote 5 at 719. It decided that allowing write-in candidates to be exempted from filing fees would not provide sufficient remedy for serious indigent candidates who could not afford the filing fees. Allowing any whole class of serious candidates to run only as write-ins was held to be more discrimination than could be justified.

This benchmark applies a fortiori in the present case. If being allowed to run write-in is not sufficient remedy for discrimination against the penurous, it is not sufficient remedy for the much broader discrimination against everyone outside of law enforcement. Thus in sum, striking the law enforcement background requirement for write-in candidates would not significantly alter the outcome of the Anderson balancing test in the present case. The gravely discriminatory sheriff's requirement would still be doing tremendous harm to fundamental interests, harms which do not begin to be offset by the small state interests at stake.

POINT 12: THE EXISTENCE OF A COMPELLING STATE INTEREST DOES NOT IMPLY A COMPELLING STATE INTEREST IN LIMITING CANDIDACY TO THE REPRESENTATIVES OF THAT INTEREST.

Precedent acknowledges a narrow set of state interests that are to weigh when an election law is put to the Anderson balancing test. As seen earlier (POINT 3), these interests can all be seen to be pursuant to the goal of facilitating the accurate expression of the will of the people. There is also, however, a fairly obvious interest from outside of precedent that can also be asserted in this case, one that even seems to fit in with the "compelling state interests" hurdle of the earlier "strict scrutiny" test. Respondents will presumably argue, and the Plaintiff will accept, that there is a compelling state interest in having sheriffs with law enforcement background. What Plaintiff rejects, and what Supreme Court precedent rejects, is that this compelling state interest implies a compelling state interest in limiting elections for sheriff to those who have law enforcement background. The two are very different things, because different compelling state interests can easily be in conflict, and if the ballot is limited to reflect one compelling state interest then any competing compelling state interest will be excluded.

Consider an example. There are compelling state interests in having prosecutors have prosecutorial experience. There are also compelling state interests (interests of The People) to having prosecutors come from the defendant's side of the bar. Neither of these imply a compelling state interest in limiting the ballot to either one of these sources of merit. Indeed, the point can be stated much more powerfully, that the fundamental state interest is in not limiting the ballot to any of the particular state interests that would otherwise contend in an election.

Elections are always about choosing between compelling state interests, as represented by different candidates. The fundamental principle of democracy (as articulated by the Court in U. S. Term Limits, supra), and hence and the fundamental state interest, is that it be The People, through the election process, who choose between the different compelling state interests by choosing who shall govern them. No state interest in a particular electoral outcome can supersede the fundamental state interest in democracy itself.

The office of sheriff is closely analogous to the office of district attorney. There is indeed a compelling state interest in having the county sheriff have a law enforcement background. Such experience will surly be helpful to any sheriff who has it. But there is also a compelling state interest in having the county sheriff not be from law enforcement. A sheriff from outside of law enforcement (for instance, someone from the gun-rights movement, who has been battling the law enforcement establishment on policy) knows what civilians need from the sheriff's department in a way that someone from within the department does not. Experience in law enforcement is a compelling interest of the people and civilian leadership is also a compelling interest of the people. Neither of these compelling state interests implies a compelling state interest in limiting the ballot, which in the presence of competing state interests is emphatically not a state interest.

The crux of this suit would seem to be whether or not the present court recognizes state interests of this unprecedented sort, and allows a compelling state interest in sheriffs having law enforcement background to translate into a strong state interest in restricting the election to candidates with law enforcement background. As noted earlier, the precedented state interests are simply not significantly at stake and hence cannot begin to offset the gigantic harms to excluded candidates, views and sources of merit. Only if the present court gives credence to unprecedented claims to state interests is there anything to talk about. Because the Plaintiff cannot assume that the present court will completely reject the unprecedented claims described, there is a further point to make about such claims.

POINT 13: IF CREDENCE IS GIVEN TO UNPRECEDENTED STATE INTERESTS, THE STATE'S INTEREST IN A CANDIDATE RESTRICTION STILL MUST BE ASSESSED ONLY AFTER THE COMPETENCE OF THE VOTERS TO JUDGE THE CANDIDATES FOR THEMSELVES HAS BEEN TAKEN INTO ACCOUNT, WHICH DRASTICALLY REDUCES THEIR MEASURE.

The question of whether the state can tell the people what state interests they must favor can be framed as a question of voter competence. In U. S. Term limits the Court recognized "the critical postulate that sovereignty is vested in the people," (supra, at 794). Interpreted strictly, this would imply that the competence of the voters to judge different kinds of merit for themselves is not to be second guessed. It is the people's right to choose amongst the different serious candidates who present themselves and the people's choices must be taken by the state to be right, so long as their choices do not violate the Constitution.

But we live in a nanny state era, where the state is allowed wide leeway to protect the people from their own choices. Might not the legislature be conceded some interest in protecting the people from their own electoral choices? No, but then there is that darned compelling state interest in sheriffs having law enforcement background to get over, so go ahead and consider what happens if the paternalistic view is given some credence. At most, the compelling state interest in sheriffs having law enforcement background would translate into a very small interest in restricting the ballot. Why? Because the alternative to restricting who the people can vote for is to let the people decide who to vote for. It is the competence of the people to decide for themselves that is the relevant comparison point. To argue that the restrictions would have much effect, it must be assumed that the people are very incompetent (yet, paradoxically, that their representatives in the legislature are not). If it is tenable to presume on the incompetence of the people at all, it is certainly not tenable to presume on it very far, so the state's interest in restricting the election can only be slight.

If the people are presumed to be competent to choose between "merit of every description" (U. S. Term Limits, supra, at 794), then discriminatory restrictions serve no state interest. If the people are presumed to need a little bit of discriminatory "help," then at most only a small state interest is served (since the people are still seen as pretty competent to see past frivolous candidates for themselves, and anyone who is actually elected would seem by definition not to have been a frivolous candidate). Only when the people are presumed to be very incompetent, perhaps even capable of electing a frivolous candidate, can the state's interest in discriminatory restrictions be substantial, but such an interest renounces voter sovereignty, making it illegitimate, which means it should not be weighed at all. Thus there is no way by this route to arrive at a weighty state interest in limiting candidacy to members of the presided over arm of government. The grave harms to political rights predominate and the candidate restrictions fail constitutional muster according to the Anderson balancing test.

POINT 14: STRIKING THE RESTRICTIONS ON CANDIDATES FOR SHERIFF IS CONSISTENT WITH THE VIABILITY OF MAY OTHER CANDIDATE RESTRICTIONS.

Would granting the Plaintiff's appeal imply that other ballot restrictions must also be held unconstitutional? No. Differences between the sheriff's restriction and the restrictions on county assessors and district attorneys have already been touched upon. In the case of county assessors, there is no reason to think there are important contending viewpoints that originate outside of the accounting profession, thus limiting the ballot to members of the profession should not inflict grave harms.

In contrast, civilian and law-enforcement viewpoints of the proper relation between civilians and law-enforcement are the main contending viewpoints in sheriff's elections, particularly in a state like California where gun rights are not protected on the state level. The great electoral struggle between law enforcement and civilian views on this very contentious question of law enforcement policy is dropped directly onto California sheriffs races. More generally, civilian viewpoints are one half of the views to be represented on the most important of all law enforcement issues, the relation between law enforcement and the civilian population that they police. To exclude civilian leadership from the ballot, when it is one of the main contending viewpoints, is a high crime against The People and the Republic.

District attorneys are in a similar position of broad discretion, and as with sheriffs, the non-law-enforcement view (the defense side of the bar) is one of the main contending viewpoints. But the restriction on district attorneys does not exclude people from outside of law enforcement. The analogous restriction to the sheriff's restriction would be if candidates for district attorney could only be drawn from the prosecutor's office, which would be obviously unconstitutional, as the sheriff's restriction is.

With much lesser harms on the harm side of the scale, there is no implication that these other restrictions should fail the Anderson balancing test.

POINT 15: "FUNDAMENTAL INTERESTS" CAN ALSO BE LOCATED BY (IF NOT IN) THE GUARANTEE CLAUSE.

An alternative route for declaring the unconstitutionality of the requirement that candidates for sheriff be members of the incumbent regime is by application of the wrongly neglected guarantee clause. Article IV, §4 of the U.S. Constitution guarantees to each state a Republican form of government. In Powell (supra, at 547) and in U. S. Term Limits (supra, at 795), the Court lays out quite clearly what the most fundamental principle of our democratic form of government is: "that the people should choose whom they please to govern them." It is the people who are sovereign. They are the master. In elections, it is they, not the government, who are to choose which competing state interests to give priority to.

Is "our democratic form of government" the same thing as "a republican form of government"? Clearly democracy is part of republicanism. For instance, the concept of republicanism as taught by John Adams, John Quincy Adams and Henry Adams refers to the system of liberty under law, which requires first of all the liberty of the people to choose who will govern them (our democratic form of government). (For a discussion of the Adams' view of republicanism, see "The Real Education of Henry Adams, by Richard Samuelson in The Public Interest, Spring 2002.) Thus whatever else might or might not be implied by "a republican form of government," democracy, and the fundamental principle of democracy (voter sovereignty) are necessarily implied.

Despite the fact that republicanism can be seen to have at least this necessary element, the Supreme Court chose a century ago to declare the guarantee clause nonjusticiable, a position which has not yet been overruled. The Court has, however, allowed that those fundamental interests which can be seen to fall under the heading of republican principles can be invoked as fundamental interests for the purposes of equal protection law (Baker v. Carr, 369 U.S. 186 (1962)). In effect, it decided to allow the guarantee clause to be used as guidance for locating the "fundamental rights and liberties" of the "fundamental interests" strand of equal protection (subsequently subsumed into the Anderson balancing test). Thus the guarantee clause could be invoked in the present case, either in support of the Anderson test, or perhaps even on it's own.

Note first that the earlier points argued by the plaintiff do not in any way depend on the guarantee clause. Also, the Court in Baker (at 209) rejected the proposition that the fact that something could be represented as a guarantee clause case made it a "political question" and therefore non-justiciable according to precedent. Rather, it took just such a case and adjudicated in on First and Fourteenth Amendment grounds (at 209), regardless of whether First and Fourteenth Amendment rights were called "political" or not, (at 209).

With these denials of negative imputation place, the Plaintiff invites this court of appeals to acknowledge and follow the Court's timid outreach to the guarantee clause in Baker v. Carr, because the first principle of republicanism—the sovereignty of the people—is exactly the issue in this case where candidate restrictions clearly seem to have the purpose of telling the people what state interests they must favor.

The restriction on write-in candidates can only have this purpose, since it does absolutely nothing to facilitate the accurate expression of the will of the people, and the restriction on access to the ballot clearly seems to partake of this purpose as well. What else can be intended, when a compelling state interest in candidates having a particular kind of merit is taken to imply a compelling interest in limiting the ballot to candidates who have that particular merit? It is presumed that the legislature can tell The People what merit they must favor.

Whether this kind of purpose is considered entirely illegitimate or is considered illegitimate only if it goes too far, the operative principle is recognition of voter sovereignty, which is an ineluctable component of a republican form of government. Thus the guarantee clause almost begs to be invoked. The result would be "judicially manageable standards" (what the Court in Baker, at 226, declined to find in the Guarantee clause). It is quite rare for states, in their election laws, to tell the people what state interests or sources of merit they must favor in an election. California's requirement that candidates for sheriff be current or recent members of law enforcement is certainly the most extreme such example, and there may be some others in ballot access law, but these laws are already held in check by precedents that limit recognized state interests to the facilitation of the accurate expression of the will of the people. No overturning of governments would be unleashed (as the court feared in Luther v. Borden, 7 How. 1 (1849). All that embracing the most ineluctable implications of the gurantee clause would do is reinforce what the Court has already instituted in Anderson, and acknowledge that there is, in fact, an article of the Constitution that demands this review.

Because the banning of civilian candidates and viewpoints from sheriff's races obstructs accurate expression of the will of the people by banning main contending viewpoints from the ballot, and because these restrictions seem to have the purpose of telling the people what state interests they must favor, the guarantee clause affirms the unconstitutionality of these restrictions.

1. The opinion of the Court was delivered by Justice Douglas: "[The] right to vote in state elections is nowhere expressly mentioned [in the Constitution]. It is argued that the right to vote in state elections is implicit, particularly by reason of the First Amendment. [We] do not stop to canvass the relation between voting and political expression. For it is enough to say that once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with [equal protection]" (at 665). Return

2. A typical formulation of the "suspect classification" doctrine can be found in Chief Justice Burger's majority opinion in Palmore v. Sidoti, 466 U.S. 421, 432, 1984, where he wrote:

3. "We have long been mindful that where fundamental rights and liberties are asserted under the Equal Protection Clause, classifications which might invade or restrain them must be closely scrutinized and carefully confined." At 670. Return

4. As a sidelight, note that all of these First and Fourteenth Amendment rights are also protected directly in the California State Constitution. Article I, sections 2 and 3 of the state constitution protect freedom of speech and assembly while section 7 guarantees equal protection. Thus the arguments that will be made in this brief challenging the California qualifications for sheriff on First and Fourteenth Amendment grounds can also be made on state constitutional grounds. Since the Federal Constitution fully applies, and takes priority, this brief will limit itself to federal constitutional argument, with the state arguments implicit. Return

5. For an account of the sequence of "shall issue" victories, and of the efficacy of "shall issue" laws, see John Lott's book More Guns Less Crime, University of Chicago Press, 1998/2000. Return

7. California Penal Code §12050 gives sheriffs and police chiefs discretionary power to issue or deny licenses for carry of firearms to people who reside or work in their jurisdictions. Return

8. Lauri Smith has stated her opposition to the issuing of gun permits. As reported in The Palo Alto Weekly, 3/6/98, page 6: "Smith said she is not in favor of handing out more gun permits…" Return

11. See, "Incumbents in Santa Clara County find few challengers lining up to race," San Jose Mercury News, 12/16/01. Return