Reply 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.

II. THE CHALLENGED CANDIDATE RESTRICTIONS ARE SUBJECT TO A HIGH LEVEL OF SCRUTINY UNDER THE ANDERSON BALANCING TEST, WHERE THE HARMS TO THE PLAINTIFF'S RIGHTS ARE SEEN TO GREATLY OUTWEIGH THE STATE'S LEGITIMATE INTERESTS. Go

III. THE DISTRICT COURT RULING IN STREETER ET AL. V. FIRMAT ET AL. WAS ERRANT. Go

IV. CALIFORNIA'S SHERIFF RESTRICTIONS CONSTITUTE A DIRECT ASSAULT ON THE GUARANTEE OF A REPUBLICAN FORM OF GOVERNMENT, CALLING FOR A DIRECT APPEAL TO THE GUARANTEE CLAUSE. THE GUARANTEE CLAUSE CLEARLY JUSTICIABLE IN THE PRESENT CASE, AND IT CLEARLY CONDEMNS THE CHALLENGED RESTRICTIONS AS UNCONSTITUTIONAL. Go

Plaintiff made two pleas at the Superior Court level: 1) that the requirement that candidates for sheriff be current or recent members of law enforcement be stricken, and 2) that if the sheriff restriction is stricken, he be placed on the ballot in for the November 2002 general election. The state argues that the second plea is moot. The plaintiff agrees, but on more explicit grounds than the state cites. These grounds (the "political question" problem) are relevant to later argument, so note of them is taken here.

When pleas were first entered, before the March primary, the request to be placed on the general election ballot was valid. The challenged candidate restriction had not at that time yet become intertwined, through the casting of votes, with political expression on the part of the voters, hence there was not yet a "political question" problem, as defined by the Supreme Court's interpretation of the guarantee clause.(1) This made postponement until the general election a possible remedy, and the Plaintiff listed it in case the court wanted to stop an unconstitutional election process from going forward at that point.

Now that the election has take place, placement on the general election ballot would involve a "political question" problem, since it would nullify primary votes already cast. This appeal was filed after the election so, to avoid political question problems, Plaintiff dropped his plea to be included on the general election ballot (opening brief, p.9). Plaintiff's remaining plea—that the requirement that candidates for sheriff be current or recent members of law enforcement be voided as unconstitutional—has not been claimed by the state to be moot, nor is it, in that it continues to stand in the way of the Plaintiffs ongoing efforts to offer himself to the people of Santa Clara County as a candidate for sheriff.

II.A. Where candidate restrictions impose substantial discriminatory harms, the test set out by the Supreme Court in Bullock v. Carter calls for a high level of scrutiny.

Respondent cites Bullock v. Carter, 405 U. S. 134, 142-144 (1972), to claim that candidate restrictions do not necessarily warrant strict scrutiny. True, but the Court in Bullock did find that a high level of scrutiny was called for in that case. The test applied in Bullock was not a balancing type test, but a litmus-paper type strict-scrutiny test. Specifically, it held that:

That is, the Court ruled that when candidate qualifications are both burdensome and discriminatory they must be "closely scrutinized."

II.B. California's candidate restrictions for the office of sheriff impose extreme discriminatory burdens and hence must be subject to a high level of scrutiny.

Respondent argues that, since anyone, including those who seek to promote civilian views about law enforcement, can become qualified to run for sheriff by spending some years pursuing a career in law enforcement, no views are discriminated against (Respondent's brief, p. 10-11). This argument fails for those who are already serious would-be candidates, even without the benefit of law enforcement background.

Discrimination against non-serious or "frivolous" candidates is not considered a First or Fourteenth Amendment harm, but is rather considered to be a legitimate state interest, while discrimination against "serious" candidates is the criterion of harmful discrimination. See, for instance Lubin v. Panish, U. S. 415, 709 (1973), where the distinction between serious and frivolous candidates is set out as the basis for distinguishing harmful discrimination (at 712). In the present case, it is clear that, to any serious would-be candidate who lacks law enforcement background, the requirement of law enforcement background constitutes an extremely discriminatory hurdle.

All candidates declare their willingness to dump their lives upside down—to drop their current undertakings in order to take a turn at public service—in the event that they win. Those seeking to represent civilian viewpoints in California sheriff races are required to do much more. They must drop their careers and devote two to four years to a different career just to enter the race. In contrast, those whose chosen career is in law enforcement do not have to take any other steps to meet the requirement that candidates be members of the law enforcement establishment. This huge disparity is the measure of the discrimination against those already serious would-be candidates who happen to come from non-law-enforcement backgrounds.

Note that the claim here is not that, were the Plaintiff to acquire law enforcement background, he would no longer be a representative of civilian viewpoints. That would simply be a foolish word game. Rather, Plaintiff is claiming that he is already a serious would-be candidate, and requiring him to change his career before he can run for sheriff, when those from law enforcement have to do no such thing, is a gross discriminatory burden.

When such discriminatory burdens on candidacy are present, a high level of scrutiny is called for (II.A. above).

II.C. The state is claiming the power to tell the people what state interests they must give priority to in the election process. This is an illegitimate state interest.

Plaintiffs opening brief (at 19-21) noted that the only state election law interests that have been recognized by Court precedent are interests in facilitating the accurate expression of the will of the voters.(2) Since it is impossible, on the basis of these interests, to justify limitation of candidates for sheriff to members of law enforcement (opening brief, sections II, III and IV), Plaintiff suggested that the Respondent would be compelled to claim an unprecedented state interest: an interest in telling the people what state interests they must give priority to in the election process. This prediction is borne out by the Respondent's claim (at 10-11) that the restriction on candidates for sheriff is non-burdensome and non-discriminatory.

As noted in section II.B. above, the state's claim of little harm only hold up if it is assumed that those who do not meet the statutory requirement for office are not "serious" candidates in terms of the Supreme Court's election law adjudication. There are two problems with this assumption.

First, if it is allowed to stand, it would allow the legislature to intrude on the judicial role, raising separation of powers problems. The "seriousness" of a candidate is a judicially created category. It cannot be defined by the legislature. That would be legislative overstepping. This is especially true in the area of election law, where Supreme Court precedent instructs the courts not to defer to the legislature. (On non-deference in election law cases, see Plaintiff's opening brief, section I.2. Non-deference is also addressed again in points II.D. and III.B. below.)

Secondly, the claim that the legislature can define who is a serious candidate attacks the fundamental interest that candidates and voters have in the principle of voter sovereignty, an interest which the Court has recognized as fundamental under the "fundamental interests" strand of Fourteenth Amendment precedent.

If the state is allowed to define who is a serious candidate and who is not, it is being given the power to tell the people what state interests they must give priority to in an election, in direct violation of the Court's affirmation of voter sovereignty in Powell v. McCormack, 395 U. S. 486, 547 (1973), and U. S. Term Limits v. Thornton, 514 U. S. 779, 795 (1995). In both those cases the Court held it to be "the fundamental principle of our representative democracy… that the people should choose whom they please to govern them." (See also, Plaintiff's opening brief, section V.)

Pursuant to the principle of voter sovereignty, the Court in Powell (at 540, n74) and U.S. Term Limits (at 794), held that that the ballot is to be "open to merit of every description." Yet California's sheriff restriction imposes extreme discriminatory burdens against one of the two main categories of contending viewpoints in races for sheriff. These two main viewpoints are the two sides of the civilian/law-enforcement relationship. To require that the viewpoints of one side must seek representation in the other, or climb over a grossly discriminatory hurdle in order to reach the ballot themselves, is to mostly or completely close the electoral door against one of the main contending sources of merit.

As the Court cited in Powell (at 541): "Representation is imperfect in proportion as the current of popular favor is checked."(3) It is hard to imagine a more extreme "check" on the current of popular favor than to place an extreme discriminatory hurdle in the way of one of the two main contending viewpoints that are at stake in the elections for a particular office. The courts must not be tricked into allowing it by sleight of hand: by an unacknowledged identification of statutory qualification with the Court's concept of "seriousness."

As for the seriousness of the Plaintiff candidacy in particular, this point arises in section III.D below.

II.D. The proper election law test—the Anderson balancing test—calls for no deference to the state legislature in this case.

There seems to be some confusion in the Respondent's brief about the proper election law test. It cites Bullock (Respondent's brief, p.9) but it paraphrases Anderson v. Celebrezze, 460 U. S. 780, 789 (1982). Just to clarify: the Bullock close-scrutiny test (quoted on page 8 above) has since been superseded by the balancing test developed by the Court in Williams v. Rhodes, 393 U.S. 23, 30 (1969), and Storer v. Brown, 415 U. S. 724, 730 (1974), and culminating in Anderson v. Celebrezze, 460 U.S. 780 (1982).

This is important because what the Court in Storer called the earlier "litmus-paper" type tests (at 730) were more deferential to the other branches of government. These tests—the "strict scrutiny" test and the "rational relation" test—were developed to satisfy the need of the courts to defer to the political branches of government on political questions, so that the proper judicial role would not be overstepped.(4) Once either test was triggered, the courts were not to second guess the balancing of concerns that had been conducted by the political branches. Rather, they would only make sure that a minimum standard of justification (different for each test) had been met.

The difference in Anderson is that election law is considered to be entirely under the purview of the courts. No deference is called for:

There is still a trigger for a high level of scrutiny: "not all restrictions [on the] ballot impose constitutionally suspect burdens" (at 788). In particular, "reasonable nondiscriminatory restrictions" are sanctioned (at 788), limiting the cases in which Anderson's detailed balancing needs to be conducted. But the once the test has been triggered, scrutiny is not to be deferential.

Since California's restrictions on candidates for sheriff are highly discriminatory, detailed balancing, with no deference to the legislature, is what is called for in the present case.

II.E. The challenged restrictions serve only to discriminate. They do little to insure that candidates are qualified.

To justify the restrictions on candidates for sheriff, the Respondent notes (at 12) that the job of county sheriff is extremely complex, entailing a substantial list of county wide administrative duties: running the jails, enforcing the law. (Other duties could have been added to the list, such as seeing to the serving of warrants.) All of these duties require management and delegation skills. Such skills are not imparted by a couple of years experience as a patrol officer, yet patrol officers qualify for the ballot while many people from outside of law enforcement, who would be highly qualified by administrative background to run the sheriffs department, are barred.

Thus the effect is not particularly to bar frivolous candidates, but only to drastically limit the sources of merit from which both frivolous and serious candidates might be drawn. This is a direct violation of the Court's position in Powell v. McCormack, 395 U. S. 486, 540, n74 (1973), and U. S. Term Limits v. Thornton, 514 U. S. 779, 794 (1995) that the ballot is to be "open to merit of every description."

Certainly many potential frivolous candidates are barred as well, but that is not what Court precedent focuses on. The weeding out of frivolous candidates is a justification only if it does not substantially discriminate against serious candidates. In Bullock v. Carter, supra, the Court's key consideration in overturning excessive filing fees was that they "exclude legitimate as well as frivolous candidates." (At 146.) This is what the restrictions in the present case do as well.

Additionally, the Court in Bullock noted that meeting the statutory requirement in that case did not make a candidate serious. Since this is also true of the California sheriff restrictions, the judgement of Bullock should apply: that the restriction is "extraordinarily ill-fitted" to the goal of "weeding out spurious candidates." (At 146.)

II.F. When these weights are placed in the scales of the Anderson balancing test, the challenged restrictions fail.

Discriminatory harms against serious candidates are extreme (II.B. and II.C. above), while the states interests are minimal (II.E.) or illegitimate (II.C.). Thus the challenged restrictions fail the Anderson balancing test.

Still, the argument can be strengthened by the addition of a further element: an alternative way of addressing the state's legitimate interest in sheriff's having law enforcement background. (Part of the Court's reason for striking down excessive candidate fees in Bullock was because, "other means to protect [the state's] valid interests are available." At 146.) Thus the Plaintiff offers a simple solution. If a candidate for Sheriff lacks law enforcement background (as specified by California Government Code §24004.3) require that this be stated on the ballot next to the candidate's name.

III.A. The District Court was wrong to find that California's restrictions on candidates for sheriff are not burdensome or discriminatory.

The Respondent's exhibit 2 contains the minutes of a federal District Court suit that challenged the same laws that are challenged in the present case (Streeter et al. V. Firmat et al.). The District Court denied strict scrutiny under the fundamental interests strand of equal protection precedent on the grounds that "The right to be a candidate or to vote for one is not so fundamental that strict scrutiny is required." (At 6.)

As seen in section II.B. above, the Court in Bullock rejected this position when substantial discriminatory harms are involved. Since, the challenged restrictions in the Streeter case (the same as in the present case) do impose grave discriminatory harms (section II.A above) the court in Streeter was wrong to deny a high level of scrutiny.

III.B. Even if lack of substantial discriminatory harm were found, the District Court in Streeter applied the rational-relation test wrongly.

As noted in section II.D. above, the Court has decided that in election law cases, the deference to the political branches inherent in the "litmus-paper" type strict-scrutiny test is not called for. Instead, the Court in Anderson substituted a detailed balancing test.

The rational-relation test is also a "litmus-paper" type test (see section II.D. footnote 4, above). As such, it should undergo this same transformation when applied to election law. Deference to the legislature should be lessened. Anderson made no distinction between the rational-relation test and the strict-scrutiny test. It simply made a blanket assertion of non-deference in election law cases (quoted on page 14 above). Consequently, this non-deference should be presumed to apply to both the rational-relation and the strict-scrutiny tests.

In non-election issues, the rational-relation test does not require that the relation between the challenged law and its claimed purposes be rational. It only requires that there rationally be some relationship, which the courts then decline to address the merits of. If this deference were dropped in election law cases then the rational-relation test would require some level of substantive rationality. Means would be scrutinized to ensure that they are not just related to, but actually promote, legitimate state interests.(5)

Any such scrutiny of means would sink California's sheriff restrictions. These restrictions promote a secondary state interest (that sheriffs have law enforcement background) by attacking the fundamental state interest in elections: facilitating (not denying) the will of the voters.

III.C. The District Court's logic in Streeter v. Firmat actually calls for striking down California's restrictions on candidates for sheriff.

The only state interest in law enforcement background that the District Court in Streeter was willing to stand behind was background in constitutional rights:

An state interest in limiting the ballot to candidates with constitutional experience is not quite an interest in facilitating the accurate expression of the will of the voters, but it is related. The limit on what the people are allowed to choose is given by the state and federal constitutions. Thus the state isn't limiting the ballot in any unconstitutional way when it requires every candidate to swear to uphold the state and federal constitutions (effectively defining non-constitutionalists as non-serious candidates).

The attempt to use this legitimate limitation of the ballot to justify limitation of candidacy to members of law enforcement obviously fails, and my case proves it. I am running precisely on the claim that the incumbent sheriffs, and the law enforcement establishment they control, are gross violators of individual rights. In particular, the constitutional duty to create a well regulated militia, by enforcing gun rights, devolves by way of state law onto the office of sheriff. The incumbent sheriffs utterly betray this trust by annihilating the right to bear arms in every urban county except Sacramento. They are an unconstitutional disaster.

Who can be better entrusted with the protection of constitutional rights? The voters, who treasure those rights, or a cadre of institutional monopolists who pursue both an unconstitutional monopoly on arms and an unconstitutional monopoly on the ballot? The District Court claimed to base its ruling on protection of liberty, then accepted irrational and unconstitutional means to that end. Instead of protecting liberty via the most important liberty of all—the liberty of the people to choose their own government—it allowed liberty to be placed under the thumb of force, in violation of the constitutional principle that it is the people who are to choose how they shall be governed.

This profound irrationality even fails the rational relation test. It certainly cannot survive the detailed scrutiny and balancing that is called for when restrictions impose heavy discriminatory burdens, as should have been found in Streeter, and are certainly present in the present case.

III.D. The District Court's position in Streeter advances Plaintiff's claim to be a serious candidate.

On the one state interest that the District Court in Streeter was willing to name—background in understanding of constitutional rights—I, the Plaintiff, am not just a serious candidate but an absolutely necessary one. That is why I am running. My experience is not in administration. I have competing qualifications and vision to offer (different "sources of merit," as the Court put it in U.S. Term Limits, supra, at 794). As sheriff, I would devote much of my effort to creating what the other sheriffs are trying to annihilate: a well-regulated militia.

As with any chief executive office, a sheriff's job is one of policy setting, administrative oversight and delegation. For those parts of the department that are already up and running, an existing structure of delegation is already in place. I will make changes to that structure as I become familiar with it and find where change are needed. As big a job will be creating the infrastructure of a well-regulated militia. Enforcement of gun rights will probably lead to somewhere in the range of 10 to 40 thousand armed law-abiding citizens on the streets within four years. If they are to be prepared to defend themselves and others I want as many of them as possible to have training in the use of arms and in the principles and limits of self-defense.

Citizens groups will have a large role to play here, and both the armed citizens and my armed officers will have to learn how to identify themselves to each other and work together. All of this needs to be developed, and will take much of my time, but the benefits are huge. If you were a criminal, what county would you want to live in?

The people have a right to vote for this platform, and I am better equipped to pursue it than anyone in law enforcement. They have never even thought about a well-regulated militia. It is anathema to them. And yes we can say that. The law enforcement establishment is a hierarchical institution. They inculcate their views through academy training, and they have proven that their tendencies are monopolistic. They strive to monopolize the use of force and they have successfully monopolized the ballot. No greater betrayal of constitutional principles has ever been witnessed in American history. Candidacy cannot be limited to this cadre of usurpers.

It would be enough for me to be serious just about stopping these crimes against the First, Second and Fourteenth Amendments, but the seriousness of my candidacy goes much further. I have plans for the jails. I have my own understanding of what the correct law enforcement priorities are. Half of my academic work is on how to smash crime, while greatly increasing protection for the innocent. Crime control and the protection of civil liberties need not be in conflict, and I will prove it.

The fear voiced by the Sheriff's Association in the legislative record (Respondent's Exhibit 3, pages 3-5) is that I (a person without law enforcement background) might win. Indeed, I might, which is the ultimate criterion of the seriousness of my candidacy. The gross discrimination against serious candidates done by the California sheriff restrictions vastly outweighs the mostly illegitimate state interests in the restrictions. Thus again, according to the Anderson balancing test, the restrictions should be stricken as unconstitutional.

IV. THE LEGISLATIVE RECORD PROVES THAT CALIFORNIA'S SHERIFF RESTRICTIONS CONSTITUTE A DIRECT ASSAULT ON THE GUARANTEE OF A REPUBLICAN FORM OF GOVERNMENT, CALLING FOR A DIRECT APPEAL TO THE GUARANTEE CLAUSE, WHICH IS CLEARLY JUSTICIABLE IN THIS CASE, AND WHICH CLEARLY CONDEMNS THE RESTRICTIONS AS UNCONSTITUTIONAL.

IV.A. California's sheriff restrictions constitute a direct assault on the guarantee clause.

Note that the Respondent's brief at no point makes any claim that the purpose or effect of the challenged restrictions is to facilitate the accurate expression of the will of the voters, nor could it. As the legislative record (Respondent's Exhibit 3) makes clear, the explicit purpose of the legislation is to tell the people what they must choose: that they should pick sheriffs with law enforcement background.

The sponsor of record for the sheriff restrictions is the Sheriffs Association (Exhibit 3, page 2). They were the force behind banning their own electoral competition. As with the Respondent's brief, the legislative record at no point makes any mention of facilitating the will of the majority. On the contrary, the great danger cited (Exhibit 3, pages 3-5) is that the majority might actually elect someone without law enforcement experience (as they did when they elected San Francisco's current Sheriff, Michael Hennessey, before the restrictions were passed). That is, the state claims the power to dismiss as frivolous or non-serious (in election law terms) even a candidate who receives a majority of the votes!

Plaintiff's opening brief (at 40-43) notes that the first principle of republican government is that it is the people who are to choose their government. Thus it is clear that the California sheriff restrictions constitute a direct challenge to the guarantee clause. The only question is whether the Court's history of finding the guarantee clause nonjusticiable renders it impotent to answer this challenge.

Because of the Court's historical reluctance to adjudicate the guarantee clause, Plaintiff's opening brief made only a reserved appeal for a ruling on guarantee clause grounds. This equation is changed by the direct assault on the guarantee clause evidenced in the legislative record. Plaintiff will here show that, though Court precedent seems hostile to the guarantee clause, it actually demands a guarantee clause action in this case.

Throughout its history, the Court has declined to adjudicate guarantee clause claims on the grounds that doing so would involve the courts in political questions. In Baker v. Carr, 369 U. S. 186 (1962), the Supreme Court conducted a thorough review guarantee clause precedent. It found 1) that "Guaranty Clause claims involve those elements which define a 'political question,' and for that reason and no other, they are nonjusticiable," (at 218), and that "the nonjusticiability of a political question is primarily a function of the separation of powers," (at 210). The basis of these findings was the historical fact that, in the guarantee clause that had up to that point come before the Court, overturning the political process that had been alleged to be un-republican would have entailed overturning the political decisions expressed through those processes, which exceeds the judicial role.

This concern was the heart of the Courts ruling in Luther v. Borden, 7 How. 1 (1849), where the Court was asked to decide which was the legitimate government of Rhode Island. Overturning a government would mean overturning elections and laws that are inextricably entwined with the political expression of the other branches of government and of the people themselves.(6)

Subsequent cases raised the same problem as plaintiffs sued to overturn, not un-republican processes themselves, but laws passed by allegedly un-publican processes. This was the case, for example, in Pacific States Telephone and Telegraph Co. v. Oregon, where Oregon's initiative process was challenged, not by voters claiming denial of republican government, but by a telephone company that did not like a law passed by the process.(7)

What the Court had not heard prior to Baker was a suit against an allegedly un-republican process that did not ask for any earlier result of that process to be nullified. Such a case would avoid "political question" entanglements. No political expression by the other branches would be at stake.

Baker was just such a case. It was a vote dilution case, challenging voting district apportionment rules. It only asked that the rules be changed so that equal numbers of voters would elect equal numbers of representatives. It did not ask that any elections or laws that proceeded from the existing rules be overturned. For this reason, the Court in Baker ruled that no political question was involved (at 226 and 232), allowing it to strike down the challenged apportionment law on equal protection grounds.(8)

At the same time, the Court in Baker ruled that "any reliance on [the guarantee] clause would be futile." (At. 227.) On the surface, this conclusion would seem to ring the death knell for the guarantee clause, if it is to be held nonjusticiable even when the entire reason for holding it nonjusticiable (the "political question" problem) is absent. Indeed, the opinion seems to be self-contradictory, having earlier held that the only source of non-justiciability is the political question problem (at 218). But in fact Baker makes perfect sense. It hit the nail on the head, and offers the key to upholding a guarantee clause suit.

Folded into Baker's definition of the "political question" problem is the requirement of "judicially manageable standards."(9) This was satisfied in Baker because the suit was brought on Fourteenth Amendment grounds. Allowing districts with fewer voters to elect the same number of representatives violates equal protection of the laws. The Fourteenth Amendment interests at stake had already been recognized by precedent, meaning they had already been found to the Court to be judicially manageable and justiciable.

If the Plaintiff in Baker had sued on Fourteenth Amendment grounds, how did the guarantee clause question even come up? It was raised by the District Court, which ruled that since the suit involved a "political question," and since guarantee clause precedent made political question cases nonjusticiable, the suit must fail.

The Supremes were correct to reject this District Court ruling, and they were also correct to hold that, were the plaintiff's suit to be looked at as a guarantee clause suit, it would fail. The Court has never recognized any judicially manageable standard for interpreting the guarantee clause itself, and because the plaintiff in Baker had not made a guarantee clause claim, he had not put forward any candidate for a manageable guarantee clause standard.

Of course any standard for interpreting the guarantee clause would have to be, not only judicially manageable, but also clearly republican, and the harm at issue in Baker—vote dilution—is not obviously un-republican. The United States Senate, for instance, is based on unequal representation. But just because Baker did not offer manageable republican standards does not mean that none can be put forward.

Such standards are exactly what the present case offers. The Court in Baker already recognized that election law cases do not involve political questions in the sense of entanglement with political expression, and this is clearly the case in the present suit. Plaintiff is not asking that any previous election results be voided, only that unconstitutional restrictions on candidacy be stricken from future election cycles.

Further, Plaintiff's central claim—that the representatives of the people are not allowed to tell the people what they must favor in the election process—is firmly established to be a "fundamental interest" according to First and Fourteenth Amendment precedent (Plaintiff's opening brief, section II.3 and VI.15 and section II.C. above). Since it is established by precedent, it has already been found by the Court to be manageable and justiciable. Thus as in Baker, no political question problem exists in the present case.

IV.C. Voter sovereignty is not just a judicially manageable standard. It has also been recognized by the Supreme Court to be the first principle of republicanism. This fact, together with the absence of political question problems, demands guarantee clause action.

The principle of voter sovereignty (that it is the people who are to choose) is the first principle of republicanism. This has already been acknowledged by the Supreme Court.

In Powell v. McCormack, 395 U. S. 486, 541 (1973), and in U. S. Term Limits v. Thornton, 514 U. S. 779, 795 (1995), the Court embraced Alexander Hamilton's statement before the New York convention that: "The true principle of a republic is, that the people should choose whom they please to govern them. Representation is imperfect in proportion as the current of popular favor is checked."(10)

Thus we have an ineluctably republican principle (voter sovereignty) that is both manageable and justiciable (since it is already established by precedent) and which is raised in a case that does not involve any other political question problems (since Plaintiff is not suing to overturn any election results, only an unconstitutional element of the election process). Further, the challenged state law directly attacks the principle that it is the people who are to decide what state interests (what interests of the people) to give priority to in an election. Since this un-republican law does great harm to candidates and voters, there is cause for suit on Guarantee Clause grounds.

With all of the precedented reasons for withholding guarantee clause protection absent in this case, guarantee clause protection must not be withheld. As Chief Justice Marshall asserted in Marbury v. Madison, 5 U. S. 137, 174 (1803):

Neither the words, nor any logic, require that the guarantee clause be eschewed in this case. Thus nullification of the California's sheriff restrictions on guarantee clause grounds is compelled.

This case is only strengthened when one notes that the most elemental expression in our Constitution of the republican principle that sovereignty lies in the people is the Second Amendment, directly leaving ultimate power (the power to throw off oppressive government) in the hands of the people. Given that the great electoral battle across the nation over the past decade has been the contest between civilian and law enforcement views of gun rights (with the people having stripped law enforcement of the discretionary power to deny gun rights in over half the states now), the fact that California's sheriff's restrictions are discriminatory against civilian viewpoints makes the harms un-republican on Second Amendment grounds as well.(11)

1. In Baker v. Carr, 369 U. S. 186 (1962), the Court held (at 210) that "The nonjusticiability of a political question is primarily a function of the separation of powers." As to whether separation of powers was at issue in a case, it looked to whether there was a question "decided, or to be decided, by a political branch of government coequal with this Court." (At 226.) An election result would be such a question (the relevant "branch of government" being the expressed will of the people, acting as master of the government). Return

2. The court surveys established state election law interests in Anderson v. Celebrezze, 460 U. S. 780, 788, footnote 9 (1982). All the interests cited focus on the integrity and reliability of election processes. The one case that is listed as "unrelated to First Amendment values", Clements v. Fashing, 457 U. S. 957 (1982), upheld the barring of election winners from holding multiple offices, as voters would likely presume they were voting for full time officeholders, and there is nothing discriminatory about the requirement. Return

3. The Court was here citing the remarks of Alexander Hamilton to the New York convention. The reference given is: "2 Debates on the Federal Constitution 257 (J. Elliot ed. 1876)." Return

4. The Court was not explicit in either Storer and Anderson that "any litmus-paper test" referred to the strict-scrutiny and rational-relation tests, but this is clearly implied, since these were the tests that by precedent had been applied in Fourteenth Amendment cases. As for the interpretation that the purpose of the "litmust-paper" type tests was to avoid overstepping the judicial role, see Plaintiff's opening brief, section I.2. Return

5. When discriminatory harms seem not to be at stake in election law cases the test for rationality would occur at lower level of scrutiny than when discriminatory harms are at stake (paralleling the lower scrutiny of the rational-relation test as compared to the strict-scrutiny test), but when this more cursory review does find irrationalities (unnecessary harms), that substantive irrationality would become actionable, putting some teeth into the test. This additional avenue for weeding out error would make it harder to use means as a place to hide harms. In Streeter, minimal such oversight of substantive rationality might have stopped the District Court from making a horrible mistake. Return

6. The Court in Luther (at 38-39) reasoned that: "If this court is authorized to enter upon this inquirey as proposed by the plaintiff, and it should be decided that the charter government … had been annulled by the adoption of the opposing government, then the laws passed by its legislature during that time were nullities." Return

7. Pacific States Telephone and Telegraph Co. v. Oregon, 223 U. S. 118 (1912). Return

8. "We have no question decided, or to be decided," wrote the Court in Baker, "by a political branch of government coequal with the Court." (At 226.) That is, the suit did not try to nullify any election or law that proceeded from the challenged process. Return

9. The "political question" problem has other possible dimensions as well, such as entanglement with foreign relations or Indian affairs. For a complete parsing of the question, see Baker, at 217. Return

10. As its source for Hamilton's remarks, Powell, at 541, cites "2 Debates on the Federal Constitution 257 (J. Elliot ed. 1876)." Return

11. Relevant facts about the contest between civilian and law enforcement views on gun rights are contained in Plaintiff's opening brief, section III.6. Return