Petition to state supremes

Alexander Rawls (pro per)

CALIFORNIA STATE SUPREME COURT

ALEXANDER E. RAWLS,

Plaintiff and Appellant,

EVONNE ZAMORA, as Registrar of Voters, etc.,

Defendant and Respondent.

H024372

(Santa Clara County

Super. Ct. No. CV805403)

PLAINTIFF'S AMENDED PETITION FOR REVIEW*

I. The Rubin criterion for applying heightened scrutiny does not apply to ballot access cases, or where discrimination between political views is present. Go

II The expressed intent of the challenged restriction is to stop candidates from outside of law enforcement from winning elections. Go

III The Gregory line of precedent does not recognize any state power to discriminate politically within the polity. Go

IV. The only state interests recognized by election law precedent are interests in facilitating the accurate expression of the will of the voters. Go

VI the distinction between the governors and the governed is not “Amorphous political rhetoric.” Electoral discrimination between these groups is grave, both in substance and in principle. Go

VII. Plaintiff is bringing the first viable guarantee clause claim in the history of the nation. Go

California Elections Code §13.5. (Candidates for sheriff must meet requirement Gov. Code §24004.3.)

California Government Code §24004.3 (Candidates for sheriff must be current or recent members of law enforcement.)

No facts are contested in this case. Plaintiff filed papers to become a candidate for sheriff of Santa Clara County and was informed that, because he lacks the required background as a law enforcement officer, votes for him would not be counted. The entire suit is an appeal to constitutional law: can the government limit candidacy to members of the government itself? In particular, Plaintiff claims that limiting candidacy to members of the law enforcement establishment constitutes sweeping and severe discrimination against one of the main contending viewpoints to be represented in elections for sheriff: the civilian side of the civilian/law-enforcement relationship.

1) What is the correct standard for determining when heightened scrutiny is called for in election law cases? Is it discrimination against serious candidates, as Plaintiff contends, or “dictation of electoral outcomes” as the Sixth District (at p.6) employs? [A copy of Sixth District's ruling was bound with this petition. The ruling is available online at: http://www.courtinfo.ca.gov/opinions/documents/H024372.DOC. ]

2) Does the legislative record support the Plaintiff’s contention that the intended purpose of limiting candidacy to members of law enforcement is to bar serious candidates (or would-be winning candidates) from outside of law enforcement?

4) On the question of discriminatory effect, several questions arise. First, is the distinction between the governors and the governed significant as a matter of political substance. i.e. Is there any substantive difference that needs to be accounted between civilian and law enforcement views of the proper civilian/ law-enforcement relationship, or is discrimination along these lines harmless?

5) Is there any important distinction to be made in principle between the governors and the governed? Can we limit candidacy to members of the government without worrying about the accountability of government to the people?

6) Can the state define who is and is not a “serious” candidate, and in that way set whatever restrictions it wants without discriminating against serious candidates, or is “seriousness” a constitutional principle, beyond legislative definition?

7) Does intent and effect of banning would-be winning candidates from outside of government violate the republican principle of voter sovereignty, creating a valid grounds for suit under the Article IV section 4 guarantee to the states that they shall have a republican form of government.

Each issue raised addresses an important point of law that needs to be settled, both to do justice in the present case, and to maintain uniformity of decision. It is the plaintiff’s contention that the Sixth District’s ruling fails at several points to follow established election law precedent.

1) In place of the established election law criterion of discrimination against serious candidates, the Sixth District (at p. 6) substitutes and criterion of annihilation. This criterion is drawn from Rubin v. City of Santa Monica, 308 F. 3d 1008, 1014 (2002), a 9^th Circuit case addressing a First Amendment expressive rights. But Rubin is explicit that the standard it applies is not to be applied in ballot access cases, and it is explicit that it is not to apply when political discrimination is involved. (See point I below.)

2) The only state interests ever recognized in election law cases are interests in creating fair and honest elections that facilitate the accurate expression of the will of the voters (see points I and IV below). The Sixth District accepts this precedent (see point I below), but then goes on to cite a paraphrase of pre-Civil-War state powers from Gregory v. Ashcroft, 501 U.S. 452, 463 (1991), without noting how those powers are checked by the Fourteenth amendment. This leaves the implication that the state does have the power to ban winning candidates, even though Gregory, and the line of employment discrimination cases of which it is a part, give wide berth to the Fourteenth Amendment. (See point III below.) If the Sixth District’s assertion of unchecked pre-Civil-War state powers is allowed to stand, the Fourteenth Amendment will be undone, creating a vast area of unsettled law.

3) The Sixth District makes assertions that imply a state power to define who is and is not a “serious” candidate, even though the concept of “seriousness” has been defined by the Supreme Court to refer to a candidate’s level of electoral support. (See point V below.)

If uniformity with existing precedent is to be maintained, all of these Sixth District holdings must be overturned.

Other important points of law that need to be settled were never taken up by the Sixth District.

1) The Sixth District’s ruling took no notice of the explicit purpose, stated directly in the legislative record (point II, below), of making sure that candidates from outside of law enforcement do not actually win elections. Election law precedent primarily addresses discriminatory effects on serious candidates. Intent to bar likely winning candidates is an additional important point of law that needs to be addressed in this case.

2) Never before in the nation’s history has candidacy been limited to members of the government itself. [1] The issues of discrimination in substance and principle that this extremity raises have not yet been addressed by the courts. It is important to do so. The problem of how to keep the governors accountable to the governed lies at the heart of the constitutional structure of checks and balances, and at the heart of democracy itself (see point VI below). Discrimination along these lines would thus seem to be an obvious constitutional concern. The nature of that concern is a new and important point of law that needs to be settled.

3) Perhaps most importantly, Plaintiff believes he is bringing the first viable guarantee clause suit in the history of the nation. The guarantee clause has never been adjudicated, but none of the reasons why earlier guarantee clause claims were deemed nonjusticiable apply in the present case. Adjudication is possible, and therefore necessary, according to the famous dictum asserted by Chief Justice Marshall in Marbury v. Madison:

It cannot be presumed that any clause in the Constitution is intended to be without effect; and, therefore, such a construction is inadmissible unless the words require it. [Marbury v. Madison, 5 U.S. 137, 174 (1803).]

All these issue were placed before the Sixth District in timely fashion. The tardiest were the issues of intent and the guarantee clause argument. Plaintiff learned of the legislative intent to ban would-be winning candidates by reading the Respondent’s Sixth District answering brief, which included the legislative record as it’s exhibit 3. He charged this barred purpose in his Reply Brief (at pp. 23-24).

Plaintiff had mentioned the guarantee clause argument in his Opening Brief, but not developed it. When the legislative record revealed a direct assault on voter sovereignty, he was incited to include a full guarantee clause argument in his Reply. Respondent had a chance to answer both intent and the guarantee clause argument during oral argument.

I. The Rubin criterion for applying heightened scrutiny does not apply to ballot access cases, or where discrimination between political views is present.

The Plaintiff and the Sixth District’s dicta are in agreement on election law standards of adjudication. According to the Plaintiff’s survey of precedent (Opening Brief, point 3) heightened scrutiny is to be applied when “serious” candidates are discriminated against in any important way, where “seriousness’ is the Supreme Court’s term of art for a candidate’s level of electoral support, or his chances of winning.[2] The object is to create a “fair and honest” election process Storer v. Brown, 415 U.S. 724, 730 (1974) that facilitates the accurate expression of the will of the people. The Sixth District (at pp.4-6) cites Burdick v. Takushi, 504 U.S. 428, (1992), on the goal of “fair and honest” elections, and on the criterion of “reasonable, nondiscriminatory restrictions” (Burdick, at 433-434) and on the criterion of electoral prospects: “[T]he function of the election process is ‘to winnow out and finally reject all but the chosen candidates.’” (Burdick, at 438.)

The test for heightened scrutiny that the Sixth District actually applies, however, (at p. 6) is not discrimination but annihilation. Because the civilian viewpoint that the Plaintiff in the present case seeks to represent is not necessarily annihilated, the Sixth District holds that no important harm is done. The Sixth District’s authority for the criterion of annihilation is the 9^th Circuit case of Rubin v. City of Santa Monica, 308 F. 3d 1008 (2002), but such an interpretation of Rubin goes against the language of Rubin, twisting it into inconsistency with Supreme Court precedent.

The 9^th Circuit held in Rubin that “Courts will strike down state election laws as severe restrictions only when they significantly impair access to the ballot, stifle core political speech, or dictate electoral outcomes.” (at 1015.) The Rubin case did not involve access to the ballot at all. It was about how candidates are allowed to describe themselves on the ballot, and as seen here, it stated explicitly that its ruling was not to apply to ballot access cases.

In order to apply the Rubin criterion of “dictation of electoral outcomes” to the present case, the Sixth District had to deny that the present case is a ballot access case (that access to the ballot is “significantly impair[ed]”). To achieve this, the Sixth District makes the extraordinary claim that limiting candidacy to members of the law enforcement establishment does not significantly impair access to the ballot AT ALL (at p. 6) never mind in discriminatory fashion.

The reasoning the Sixth District offers in support of this proposition is that the restriction admits candidates on “five broad qualifications, which embrace people of varying experience.” (Id.) But these “five broad qualifications” are simply different combinations of education and law enforcement background, all of which require years of employment in law enforcement. When the 99.5% of the population who lack years of employment in law enforcement are all barred from candidacy, the limitation is obviously “significant.” The only question at issue is whether it is discriminatory. The Sixth District’s untenable denial that the ballot is even limited does not constitute an investigation into whether the actual limitations in the present case are or are not discriminatory.[3]

Not only is the Sixth District wrong to apply the Rubin standard in a ballot access case, it also applies the Rubin standard wrongly. It assumes that Rubin’s presumption against restrictions that “dictate electoral outcomes” only applies to restrictions that completely dictate outcomes. (On this grounds the Sixth District holds that, because the viewpoint the Plaintiff seeks to represent is not necessarily annihilated completely, harm is not “severe” (p.6).) But to interpret Rubin as concerned only with complete dictation of electoral outcomes twists Rubin into inconsistency with the Supreme Court’s established concern with discrimination between political viewpoints. The 9^th Circuit in was careful in Rubin not to do this. It explicitly embraced the criterion of political discrimination by noting (at 1014) that it would consider restrictions to be “severe” unless they were “politically neutral.”

Lastly, while Rubin was about First Amendment expressive rights, such rights are not at issue in the present case. Plaintiff has made NO expressive claims. His case is asserted entirely in terms of political rights of association through the electoral process. Expressive rights might also be at stake, but the Plaintiff hoped to eliminate opportunities for the Respondent to misrepresent his case as based on expressive claims, which are merely supporting and are not core.

II The expressed intent of the challenged restriction is to stop candidates from outside of law enforcement from winning elections.

No facts are in dispute here. The legislative record is now part of the record of the case (Respondent’s Exhibit 3). Plaintiff’s interpretation is based directly on these facts in the record. The expressed fear of the bill’s sponsor (the Sheriff’s Association) was that, without the restriction, candidates from outside of law enforcement were liable to actually win elections. A number of close calls to this effect are even cited.

Not surprisingly, the Sheriff’s Association neglected to mention those cases where the people did elect a sheriff without law enforcement background. One such example is San Francisco Sheriff Michael Hennessey, who was elected eight years before the restriction was passed and has now gone on to become California’s longest serving sheriff.

If the legitimate purpose of election regulation is to create “fair and honest elections,” Storer v. Brown, supra, at 730, that accurately express the will of the people, then an intent to bar would-be winning candidates is the very definition of illegitimate state power.

III The Gregory line of precedent does not recognize any state power to discriminate politically within the polity

While Sixth District does not mention the legislative intent to ban winning candidates, it does assert sweeping state powers under which such an intent would be legitimate. Citing a line of employment law precedent (from Gregory v. Ashcroft, 501 U.S. 452, 463 (1991)) the Sixth Districts asserts (at p. 7) a general state power to set candidate qualifications. This state power is stated without any reference to how this power is checked by the First and Fourteenth Amendments, effectively asserting that the states do have the power to ban winning candidates.

In contrast, the Court in Gregory, and in the line of precedent leading up to Gregory, WAS careful to note how state powers are checked by the Fourteenth Amendment. Indeed, the Fourteenth Amendment was given wide berth. As a result, nothing in Gregory in any makes political discrimination an allowed state purpose in the regulation of elections. All this is easily traced.

The Sixth District (at p. 7) cites Gregory (at 463) to the effect that “the authority of the state to determine the qualifications of their most important governmental officials is an authority that lies at the heart of representative government.” Gregory was at this point paraphrasing the broad powers that were held to belong to the states before the Civil-War amendments were passed, citing Luther v. Borden (7 How. 1 (1849)) as an antecedent.[4]

This broad reference to pre-Civil-War state powers was acceptable in Gregory because Gregory was an age discrimination case that did not involve any issue of discrimination between political viewpoints, which would be barred by the Fourteenth Amendment. It did touch on election law because the age limit in question applied to judges, who once in office were subject to periodic up or down elections, but there was no suggestion that this age discrimination discriminated in any way between political views.

Gregory stems from a line of employment discrimination cases that established legitimate state powers to bar aliens from positions “intimately related to the process of democratic self-government.” (Bernal v. Fainter, 467 U.S. 216 (1984).) The Court in these cases was acknowledging a state power to define the boundaries of the polity. Aliens could be considered outsiders, and discriminated against on that grounds. This narrow state power to discriminate cannot be properly extended to cover discrimination amongst political views within the polity. This is acknowledged throughout the Gregory line of precedent.

The specific passage from Gregory that is cited by the Sixth District contains an important qualifier that the Sixth District fails to mention. “These cases,” wrote the Court in Gregory [emphasis added], “stand in recognition of the authority of the people of the States to determine the qualifications of their most important government officials. It is an authority that lies at `the heart of representative government'." (At 463.)

“These cases,” is a direct reference to Bernal v. Fainter, supra, which is the source of the internal quote “the heart of representative government.” (At Fainter’s p. 221.) Fainter explains what “these cases” are:

We have …developed a narrow exception to the rule that discrimination based on alienage triggers strict scrutiny. This exception has been labeled the "political function" exception and applies to laws that exclude aliens from positions intimately related to the process of democratic self-government. (At 220.)

The rationale behind the political-function exception is that within broad boundaries a State may establish its own form of government and limit the right to govern to those who are full-fledged members of the political community. (At 221.)

Thus the specific acknowledgement is, again, of a state’s power to set the boundaries of the polity, but broad powers are also referred to. The question is how broad. Gregory (at 452 and 463) cites Sugarman v. Dougall, 413 U.S. 634, 648 (1973), to locate these state powers, not just in the Tenth Amendment, but also in the Article IV, section 4 guarantee to the states that they shall have a republican form of government. But neither grounding empowers the states to violate the Fourteenth Amendment. In particular, the guarantee clause (unlike the Tenth Amendment) imposes a limit on forms of state government. It cannot empower the states to violate other constitutional provisions.

In particular, the Court in Gregory (at 462) notes that the broad state powers it refers to are checked by the Fourteenth Amendment, just not completely. It allows that “our scrutiny will not be so demanding where we deal with matters resting firmly within a state’s constitutional prerogatives.” (Id.) This is the critical point. For the meaning of “firmly within a state’s constitutional prerogatives,” Gregory (at 462) cites Sugarman, supra, (at 648). Sugarman at this point cites in turn Kramer v. Union Free School District, 395 U.S. 621, 625 (1969), where the Court acknowledged a state’s power to set voter residency requirements. That is, the citation again traces back to a state power to set the boundaries of the polity.

Kramer was a straight First and Fourteenth Amendment election law case. A state power to set the boundaries of the polity does indeed lie firmly within a state’s prerogatives under First and Fourteenth Amendment election law because such a power does not involve discrimination amongst political views within the polity. (It is similar in this way to the age discrimination allowed in Gregory.) We see then what it means for a state power to lie “firmly within a state’s constitutional prerogatives.” It is a reference to those state powers that are clearly allowed under the Fourteenth Amendment.

Thus nothing in Gregory can be interpreted to impinge on First and Fourteenth Amendment election law precedent. The whole line of precedent, starting with Sugarman, is clear that its assertion of state powers only applies in cases where Fourteenth Amendment protections are clearly NOT at issue.

It is an innovation of the Sixth District to cite Gregory’s reference to sweeping state powers to discriminate without acknowledging how those powers are completely trumped by First and Fourteenth election law precedent. This assertion of pre-Civil-War state powers stands in direct conflict with election law precedent. If it is allowed to stand, this area of law will become unsettled, and First and Fourteenth Amendment political rights will be undermined.

IV. The only state interests recognized by election law precedent are interests in facilitating the accurate expression of the will of the voters.

What about election law itself? Can a power to ban winning candidates possibly arise there? To clarify that it cannot, Plaintiff adverts to the Supreme Court’s survey of legitimate state interests in election law cases, conducted in footnote 9 of Anderson v. Celebrezze 460 U.S. 780, 788 (1982). Here all recognized state interests are seen to be interests in facilitating the accurate expression of the will of the voters. (This proposition was also supported in point 3 of Plaintiff’s Sixth District Opening Brief.)

Anderson’s footnote 9 (at 789) lists a number of purposes pursuant to the “integrity and reliability of the electoral process” (mirroring the “fair and honest” language of Storer v. Brown, supra, at 730). In pursuit of these “First Amendment values” the states can require candidates to make a substantial showing of preliminary support, in order to avoid encumbering the ballot with “frivolous candidates,” and they can ban activities that distort the election process, such as “party raiding” (switching parties to affect another party’s electoral outcomes).

Only in one case did the Court find that it had upheld a state election law interest that lies outside of these “First Amendment values.” That was in Clements v Fashing, 457, U.S. 957 (1982), where the Court had upheld a ban on holding two offices at once. But such a ban easily could be interpreted as facilitating the accurate expression of the will of the voters. Running for an office that one is not free to assume can be seen as perpetrating a fraud against the voters, undermining their ability to express their will through the election process.

Thus in sum, the only state interests ever recognized as legitimate in election law cases are interests in creating fair an honest elections that give accurate expression to the will of the voters. In other words: voter sovereignty. Intent to ban winning candidates is thus indeed the epitome of barred state power, and effects in this direction are the ultimate criterion of harm to First and Fourteenth Amendment political rights.

None of this implies that the states do not possess broad powers to regulate elections. As the Court asserted in Anderson: “the States important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions.” (At 789.) Qualifications just have to have the purpose of facilitating the accurate expression of the will of the voters. Thus there is no imputation that, if the challenged restriction is stricken, other restrictions must be stricken as well.

Never before in the nation’s history has there been discrimination along the present lines, where candidacy is limited to members of the government itself. The analogous restriction in races for district attorney would be to require that candidates not just be members of the bar, but be drawn from the prosecutor’s office. The obvious unconstitutionality of the latter does not imply that the former is also unconstitutional.

A qualification that weeds out many unserious candidates and relatively few serious candidates does not even call for heightened scrutiny, so long as the qualification does not have any systematic tendency to discriminate by weeding out serious candidates of a particular political view. When significant discrimination is present, heightened scrutiny, in the form of the Anderson balancing test (at 789) applies (Opening Brief, point 3).

Under the Anderson balancing test, even restrictions that discriminate against serious candidates of some political persuasion can be justified, so long as this harm to the accurate expression of the will of the people is more than offset by benefits at other points to the accurate expression of the will of the people (Opening Brief, point 14). What can never justify electoral discrimination is any state interest other than facilitation of the accurate expression of the will of the people. No such state interests have ever been recognized in election law precedent. State powers to set qualifications are much broader for non-elective offices, since such powers do not intrude on voter sovereignty, but these powers cannot be asserted over election law precedent.

The Sixth District (at page 6) holds that that limiting candidacy to members of law enforcement is not discriminatory because it applies equally to everyone, mirroring the claim in the Respondent’s brief that the restriction is not discriminatory because anyone can pursue the required law enforcement background (at Respondent’s page 6.) This point was answered definitively by the Plaintiff (Reply Brief, pp 8-10).

As the Supreme Court held in Lubin v. Panish (supra note 2), the criterion of the seriousness of a candidate is the extent of his political support. Those candidates whose winning qualifications come from outside of law enforcement must give up a number of years of their lives acquiring law enforcement background in order to clear the California sheriff restriction. Those whose winning qualifications consist of law enforcement background do not have to do anything else to clear the challenged restriction. This disparity in the obstacle that the restriction poses to different serious candidates is the measure of its discriminatory effect.

Universal application only implies non-discrimination if the state is empowered to define “serious” candidates as those who meet the statutory qualifications, instead of by the extent of their electoral support. This point is important because it gets back to the fundamental issue of whether the state is allowed to ban would-be winning candidates.

If the state is allowed to define all candidates who have not met the statutory requirements as “unserious,” then the state can discriminate at will, regardless of what the people would choose. Precedent is clear. “Seriousness” is in fact defined by constitutional interpretation. For the state to redefine “seriousness” legislatively is to violate the separation of powers, trying to stand atop the Supreme Court’s authority to interpret the Constitution. The Sixth District is by implication asserting such a state power.

VI the distinction between the governors and the governed is not “Amorphous political rhetoric.” Electoral discrimination between these groups is grave, both in substance and in principle.

The Sixth District (at p. 6) dismisses the distinction between the governors and the governed as “amorphous political rhetoric.” This assertion does not stand up to scrutiny. The distinction between the governors and the governed was held by the framers of the Constitution to be of utmost importance. The entire constitutional structure of separated powers and checks and balances is to keep the governors from being able to escape accountability to the governed and achieve tyrannical power over them.

The difficulty was expressed in Federalist 51: “…you must first enable the government to control the governed; and in the next place oblige it to control itself.” (At paragraph 4.) To oblige the government to control itself, the author (either Hamilton or Madison) declared “dependence on the people,” (i.e. electoral accountability) to be “the primary control.” In comparison, all the other mechanisms of checks and balances are “auxiliary precautions.” (Id.)

When candidacy is limited to members of the government itself, the “primary control”—the power of the people to “throw the bums out”—is directly limited. We have to pick a governor from inside of the very governmental establishment that we may want to reform.

In sum, the distinction between the governors and the governed is the Constitution’s constant highest concern, and limitation of candidacy to members of the government attacks this distinction at its most critical point.

To gauge the discriminatory harms that result from granting members of the government exclusive access to the ballot, it is necessary to account 1) the substantive differences in views between those inside and outside of government and 2) special harm to the accountability of government to the people that comes from limiting candidacy to members of the government itself. In the present case, these two categories of harm are addressed in points 6 and 7 of the Plaintiff’s Opening Brief.

On substantive differences, the Plaintiff’s cites as an example (point 6) the veritable electoral war that has raged across the nation between civilian and law enforcement views about citizen gun carry. Over the past fifteen years, the voters in half the states have stripped their sheriffs of the discretionary power to deny gun permits, clearly rejecting establishment views on this issue.

On the principled distinction between the governors and the governed, Plaintiff has noted (Opening Brief, point 7) how the banning of outside electoral competition has empowered Santa Clara’s incumbent Sheriff, Lauri Smith, to behave. Because all candidates must come from within the law enforcement establishment, Smith has been able to destroy the careers of everyone who has run against her, with the effect that she now runs unopposed. By empowering such behavior, the challenged restriction severely discriminates against all opposing viewpoints, with outside viewpoints facing the steepest hurdle. Anyone who would challenge the incumbent sheriffs must advance in their careers under the power of the incumbents, who can suppress all who they disagree with or consider a threat.

Note too the logical connection between the particular substantive discrimination noted and the principled purposes of holding the governors accountable to the governed. “There is in the nature of sovereign power,” wrote Alexander Hamilton in Federalist 15, an impatience of control, that disposes those who are invested with the exercise of it , to look with an evil eye upon all external attempts to restrain or direct its operations.” Those who have power naturally strive for monopoly of power. The law enforcement establishment evidences this disposition, both through its banning of electoral competition from outside of law enforcement, and through its tendency to seek a monopoly of arms, which creates such a salient political divide between the civilian and law enforcement views of civilian gun carry.

Other substantive political divides between those in and out of law enforcement are possible and likely, both from the systematically different experience of those inside of law enforcement, and from the systematic tendency of all government establishments to promote their own power.[5]

VII. Plaintiff is bringing the first viable guarantee clause claim in the history of the nation.

The Supreme Court has recognized the fundamental principle of republicanism to be the principle of voter sovereignty: that it is the people who are to choose who shall govern them.[6] This principle is directly attacked in the present case by the legislature’s express intent to ban winning candidates from outside of the law enforcement establishment and by effects in this direction. By claiming the power to reject who the people would choose through the election process, the representatives of the people are claiming that it is they, not the people, who are sovereign.

The guarantee clause claim adds its own force and weight to the Plaintiff’s case, yet it proceeds on the very same grounds. As seen in point IV, election law precedent is entirely focused on the objective of creating a “fair and honest” electoral system that facilitates the accurate expression of the will of the voters. This is exactly the principle of voter sovereignty, and this coincidence allows the present guarantee clause claim to succeed where all previous such claims have failed. This is covered in depth in Plaintiff’s Sixth District Reply Brief, but will be reviewed quickly here to demonstrate that the case really is airtight and needs to be considered.

In Baker v. Carr, 369 U. S. 186, 218 (1962), the Court held that the only reason guarantee clause claims had earlier been found to be nonjusticiable was because they raised one of two types of “political question problem. Firstly, it found that "the nonjusticiability of a political question is primarily a function of the separation of powers," (at 210). This is because guarantee clause claims have typically sought to overturn, not just an unrepublican process, but enactments or election results that had proceeded from that process. Overturning the results of an allegedly unrepublican would bring the Court into conflict with the political branches of government. But where it is only an allegedly unrepublican process itself that is challenged, no separation of powers type problem arises.

This was the Court’s ruling on the claim at issue in Baker itself. Baker was a vote dilution case where the Plaintiff only sought to strike down unequal apportionment rules. Because no election results were to be overturned, no verification of election results by the executive (and hence no electoral expression of the will of the people) was involved. Consequently, there was “no question decided, or to be decided by a political branch of government co-equal with [the] Court,” and hence, no separation of powers problem (Baker, at 226).

This is the situation in the present case. No election results are challenged, hence no separation of powers type political question arises.[7] That leaves only the second type of “political question problem” identified in Baker: “a lack of judicially discoverable and manageable standards” of adjudication (at 217). In the case of the republican principle of voter sovereignty, however, these manageable standards can be imported directly from First and Fourteenth Amendment election law. The Supreme Court has already asserted that the principle of voter sovereignty is the fundamental principle of republicanism and it has already embraced, through election law precedent, manageable standards for adjudicating that principle.

Baker (at 226) actually did something like this itself. It found manageable standards to be supplied under equal protection precedent. If people were given the power to vote, they had to be given equal voting power. But while the embrace of this principle by the Supreme Court proves it to be a discoverable and manageable standard, it is not a necessary republican standard. The Senate, for instance, by affording equal voting power to states, violates the principle of equal voting power across individuals. Thus no guarantee clause claim could have been upheld in Baker, had one been brought. (The suit in Baker was never on guarantee clause grounds. The republican guarantee had been raised by the district court, which had rejected the apportion suit on the grounds that it raised political questions, which it claimed had been declared non-justiciable by the Courts guarantee clause precedents.)

The Court’s holding in Baker does not bar the upholding of a guarantee clause claim. True, Justice Brennan wrote (at 227) that “any reliance on [the guarantee clause] would be futile,” but this was not for lack of manageable standards. This claim was based on the presumption that, if manageable standards problems did not arise, then separation of powers problems would. This can be seen Baker’s footnote 48 (at 222), which cites Luther’s holding that a military government would have to be overthrown as unrepublican. The footnote goes on to acknowledge that “the judiciary might be able to decide the limits of the meaning of ‘republican form,’ and thus the factor of lack of criteria might fall away,” but it speculates that at that point separation of powers problems would likely arise. In the present case, the lack of criteria does fall away, yet separation of powers problems do not arise. The Court in Baker did not anticipate such a case because one had never arisen before, but here it is.

Would it be superfluous to uphold a guarantee clause claim in the present case, when the challenged restriction can be struck down on First and Fourteenth Amendment grounds? No, because no part of the Constitution can be deemed superfluous. As Chief Justice Marshall wrote in Marbury v. Madison:

It cannot be presumed that any clause in the Constitution is intended to be without effect; and, therefore, such a construction is inadmissible unless the words require it. [5 U.S. 137, 174 (1803).]

If a guarantee clause claim can be adjudicated, it must be, and in the present case, it can be.

Lastly, recall that state powers stated in Gregory and appealed by the Sixth District were located partly in the guarantee clause (point III, above). If there is any question about whether these powers are completely trumped by the Fourteenth Amendment, then the Sixth District’s imputation of a state power to ban winning candidates becomes a possibility. Could the guarantee clause actually empower states to bar winning candidates, rather than prohibit them from the same? This conflict over the implications of the guarantee clause strengthens the urgency of establishing what the guarantee clause actually requires, especially in the context of the Civil-War amendments.[8]

Certificate of word count: This petition contains less than 6000 words. ____________________

* The submitted petition differs from this amended petition (not submitted) as noted in footnotes 3, 5 and 8. The worst mistake, unchanged here, is the placement of point I, concerning the proper criterion of harm to First and Fourteenth Amendment political rights (political discrimination). This point really needs to be with the other points that address this discrimination (points V and VI). As always seems to happen, Plaintiff was still working on the filing when he had to send it out to be copied and bound.

[1] At least two states (Utah and Georgia) followed California’s lead in requiring sheriff’s to have law enforcement background. The Plaintiff’s understanding is that California’s was the first such law in the nation.

[2] See, for instance, Lubin v. Panish, 415 U.S. 709, 714 (1973), where the Court identified “the seriousness of [a] candidacy” with “the extent of [the candidate’s] political support.”

[3] The petition actually submitted to the Supreme Court did not include this sentence. Leaving it out could seem to leave open the possibility that the issue of discrimination is a fortiori (the same logic and conclusion as the issue actually addressed by the Sixth District, but with more conclusive force, since if a view is not even limited it is certainly not discriminated against) when actually the discrimination issue is a petito principi: the question of whether limitations are discriminatory is begged by the (errant) claim that candidacy is not limited at all. Confusion on this point is made more likely by the mistake, noted in * above, of not placing this point with or after points V and VI which demonstrate that discrimination is indeed extreme in the present case. Other differences between this “Amended Petition” (not filed) and the submitted petition are listed in footnote * above.

[4] The sentence in Gregory that is cited by the Sixth District (Sixth District at 7, Gregory p.463) is a repetition of the same language used by Gregory at p.462, where Gregory traces this language back to earlier cases, starting with Luther v. Borden.

[5] The concluding two paragraphs of this section were not in the submitted petition for review. Other differences between this “Amended Petition” (not filed) and the submitted petition are listed in footnote * above.

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

[7] There are other ways, besides the overturning of enactments or election results, that separation of powers type political question problems can arise, as when foreign relations or Indian affairs are involved. None of these other issues were at stake in Baker, nor do they arise in the present case. For a complete parsing of the question, see Baker, at 217.

[8] The petition actually submitted to the Supreme Court did not include this concluding paragraph. Other differences between this “Amended Petition” (not filed) and the submitted petition are listed in footnote * above.