PLAINTIFF/APPELLANT'S OPENING BRIEF,  CHALLENGING CANDIDATE RESTRICTIONS FOR THE OFFICE OF COUNTY SHERIFF

Plaintiff Alleges:

1. Plaintiff is a United States citizen more than 35 years of age, a resident of the State of California and a duly registered voter in Santa Clara County California.

2. Plaintiff hereby applies for the issuance of a writ of mandate under Section 13314 of the Elections Code based on the allegations set forth below.

3.  Defendant Evonne Zamora is now, and at all times mentioned herein was, the duly appointed, qualified and acting Registrar of Voters of Santa Clara County. She is charged with enforcing the statutes herein referred to.

4.  According to Election Code §13314.3, the Superior Court of California in Sacramento County is the exclusive venue for election cases where the Secretary of State is named as a defendant. However, §13314.2 declares that plaintiff may seek writ of mandate on constitutional grounds (i.e. may sue to strike the offending law) with no mention of any need to name the Secretary of State as defendant. Also, according to Civil Code §389, the Secretary of State does not meet the criteria for compulsory joinder, as his interests can be represented by his subordinates at the county level (the Registrar of Voters). Hence Santa Clara County Superior Court seems to be the proper venue. Such at least, was the opinion of the Honorable Judge James T. Ford of Sacramento County Superior Court four years ago when plaintiff pled for a writ of mandate to strike down law enforcement background as a ballot access restriction for the office of Sheriff. (The present suit complains about the similar restrictions on write-in candidates.)

First Cause of Action

(Complaint for Declaratory Relief)

5.   A neglect of duty is about to occur in that the Santa Clara County Counsel's office has advised the plaintiff, Alexander Rawls, that because he has not documented compliance with California Government Code §24004.3 his nomination process as write-in candidate for Sheriff of Santa Clara County is considered incomplete according to California Election Code §13.5 and write-in votes in his name will not be counted. This failure to count votes will be in violation of the Plaintiff's Constitutional rights under the First, Fourteenth, and Second Amendments to the U.S. Constitution and Article I sections 1,2,3 and 7 of the California State Constitution. (Plaintiff has fulfilled all the requirements for qualification for write-in candidacy for the office of Sheriff of Santa Clara County except for documentation of law enforcement background.)

6.   California Government code §24004.3 requires that candidates for the office of County Sheriff have extended experience in California law enforcement (the number of years of experience required varying with the candidate's educational background). That is, only members of this arm of government are allowed to run for leadership of this arm of government. According to Supreme Court precedent, candidate restrictions are allowed only for the purpose of facilitating accurate representation of the will of the voters (as by keeping clutter off the ballot), not for the purpose of limiting what views The People are allowed to favor in their voting. The offending laws do limit what the people are allowed to choose, and in the most audacious fashion: no civilian viewpoints allowed.

7.   The offending statutes, both on their face and as applied, violate equal protection of the plaintiff's first amendment rights to speak and assemble so as to participate in the political process, both to have his views represented, and to offer himself for elective office. His right to vote for someone who represents the views of the civilian (non-law-enforcement) population is occluded, and so is his right to have votes in his name counted, and to be seated for the office of Sheriff in the event that more voters write in his name than vote for the opposition.

8.   A declaration from this court invalidating the restriction on write-in candidates is necessary and appropriate at this time. No recourse besides suit is available to the plaintiff in this matter, and California Election Code §13314 provides that "[this] action or appeal shall have priority over all other civil matters." If declaratory relief is not granted, plaintiff will suffer irreparable injury.

9.   Four years ago plaintiff sued in Sacramento County Superior Court for access to the ballot as a candidate for Sheriff of Santa Clara County. The Honorable Judge James T. Ford scheduled a hearing for the next week, at which time he refused to hear oral arguments and ruled summarily against the plaintiff, denying the plea for writ of mandate. If the court rules in the present case that the described restriction on write-in candidates is unconstitutional, plaintiff pleads that the same criterion of constitutional law (that the only valid purpose of candidate restrictions is to facilitate accurate expression of the will of the voters) also renders the ballot access restriction unconstitutional and pleads that it be declared unconstitutional by the court.

10.   Plaintiff could have gone through the process for nomination to the ballot this election cycle and sued again for injury when kept off the ballot, except he supposed that such a suit would be considered improper on grounds that it would have been identical to the one adjudicated four years ago. This circumstance will be changed if in the present case the write-in half of the candidate restriction law is ruled unconstitutional. The new precedent will be highly pertinent to the earlier case and should alter its outcome. Thus plaintiff also pleads at this time that the ballot access restriction requiring law enforcement background also be declared unconstitutional.

11.   A declaration from this court invalidating this ballot restriction is necessary and appropriate at this time. No recourse besides suit is available to the plaintiff in this matter, and California Election Code Section 13314 provides that "[this] action or appeal shall have priority over all other civil matters." If declaratory relief is not granted, plaintiff will suffer irreparable injury.

Second Cause of Action

(Petition for Writ of Mandate)

Plaintiff re-alleges Paragraphs 1 through 11 above and incorporates them as fully set forth.

12.   Plaintiff asks the court for a Writ of Mandate compelling the Registrar of Santa Clara County to count all write-in votes for his candidacy, and to declare him Sheriff if he receives a majority of the votes cast. Such a Writ of Mandate from this court is necessary and appropriate at this time. Otherwise, as of March 5^th, the incumbent will be declared the winner of the Sheriff's race without write in votes for the Plaintiff having been counted. Plaintiff further asks that the writ of mandate place him on the ballot as a candidate for the office of Sheriff.

13.   Elections code §13314 requires that writs of mandate "not substantially interfere with the conduct of the election." It is too late for the Plaintiff to be placed on the ballot for the March 5^th primary election without substantial interference with the primary. However, since Plaintiff is the incumbent sheriff's only opposition in the primary it would not substantially interfere with the election process to declare the primary race for Sheriff a nullity and place the Plaintiff on the ballot with the incumbent for the general election next November. Such an additional Mandate from this court is necessary and appropriate at this time. Otherwise, as of March 5^th, the incumbent will be declared the winner of the Sheriff's race without without plaintiff having had a chance to appear on the ballot.

14.   The issuance of this Writ of Mandate will not substantially interfere with the conduct of the election. California Election Code Section 13314 provides that "[this] action or appeal shall have priority over all other civil matters." No recourse besides suit is available to the plaintiff in this matter. If Writ of Mandate is not granted, plaintiff will suffer irreparable injury.

 

Wherefore, plaintiff prays judgement as follows:

15.   That Government Code §24004.3 of the State of California and Elections code §13.5 be invalidated and a Writ of Mandate issued to the defendant requiring that write in votes for the Plaintiff be counted and that he be placed on the ballot as a candidate for Sheriff of Santa Clara county in the general election next November, providing he gather the necessary nomination signatures and other requirements for appearing on the ballot, besides evidence of law enforcement background.

16.   Supposing that the above judgement is issued, Plaintiff also prays that the filing fee for appearing on the ballot be waived, in that the allowed purpose of the filing fee is to raise a hurdle that keeps the ballot from being cluttered by unserious candidates (Lubin v. Panish), while Plaintiff is demonstrating his seriousness by spending substantial resources to overcome this ballot access hurdle.

17.   For such other and further relief as the court may deem proper.

I am the plaintiff in the above-entitled action; I have read the forgoing complaint/petition and know the contents thereof; the same is true of my own knowledge.

RESPECTFULLY SUBMITTED

Dated:__________, 20_______________________

Alexander Rawls, Plaintiff