Petition to U.S. Supreme for writ of Certiorari

Filed  9/23/2003



Plaintiff and Appellant,


EVONNE ZAMORA, as Registrar of Voters, etc.,

Defendant and Respondent.


Questions presented

1.  Do the First and Fourteenth Amendments allow candidacy for office to be limited to members of the government itself?

In 1988 the California Sheriffs’ Association sponsored a bill banning electoral competition from outside of the law enforcement establishment. Does this law discriminate in principle, by requiring opposing views to be represented by those who are under the power of the incumbent sheriffs? Does it discriminate in substance, by banning a main contending viewpoint—the civilian side of the civilian/law-enforcement relationship—from the ballot?

2.  Does election law precedent allow a state to set limits on candidacy, not for the purpose of weeding out unserious candidates (those who do not have a serious chance of winning), but in order to prevent candidates who do not possess specified qualifications from actually being elected? (The reason given in the legislative record for limiting candidacy to members of the law enforcement establishment is the fear that, without this restriction, the people would actually elect sheriffs who do not have law enforcement background, as they indeed were doing.)

3. If a restriction has the goal, not of facilitating the accurate expression of the will of the voters, but of telling the voters what they must choose, does it so directly attack what Alexander Hamilton called “the true principle of republicanism… that the people should choose whom they please to govern them,” as to constitute a violation, not just of election law precedent, but also of the Article IV section 4 guarantee to the states that they shall have a republican form of government?

4.  Can the Court let stand an interpretation of Gregory v. Ashcroft, 501 U.S. 452 (1991) that embraces Gregory’s paraphrase of pre-Civil-War state powers (at 462) without noting how Gregory holds those powers to be checked by the Fourteenth Amendment.




Statement of the Case

The basic facts of the case are not in dispute. The plaintiff went through all the steps to file for write-in candidacy in the May 2002 election for sheriff of California’s Santa Clara County. He met all the requirements except for the requirement that candidates for sheriff have extended recent law enforcement experience, as set forth in California elections code §13.5 and California government code §24004.3.[1]  On February 20th , acting as his own attorney, the plaintiff filed suit in California Superior Court, Santa Clara County, claiming harms to his First and Fourteenth Amendment rights to associate for the advancement of political views that were not justified by any overbalancing state interest.

Plaintiff’s brief specified that his suit was to overturn the challenged candidate restriction, not just as it applies to write-in candidates, but also as it restricts access to the ballot. The only reason the plaintiff had filed for write-in candidacy rather than to appear on the ballot was because he knew that the requirement of law enforcement background barred his access to the ballot. Only when he tried to file for write-in candidacy did he realize that the restriction applied to write-in candidates as well. Thus both aspects of the restriction were and are actively blocking the plaintiff’s attempts to exercise his First and Fourteenth Amendment political rights.

Since state law requires that suits in election law move to the head of the docket, a hearing was held in the chambers of the Honorable Judge Joseph F. Biafore the day after plaintiff’s suit was filed. Plaintiff was given just enough time to suggest that the unprecedented limitation of the ballot to members of the government itself made a strong prima facie case for heightened scrutiny. Judge Biafore disagreed and denied the plaintiff’s suit. Plaintiff, still acting as his own attorney, then appealed the case de novo to The California Sixth District Court of Appeal. An Opening Brief, a Respondent’s Brief and a Reply Brief were all filed. Both sides requested oral argument, which was held before a three judge panel on April 8th 2003.

In its ruling, the court agreed to address the questions raised, “[g]iven that there is an obvious public interest in the constitutionality of section 24004.3 and plaintiff or others may later face the issue.” (Appendix 1, at pp. 1-2.) On the merits, the Sixth District disagreed with the plaintiff, affirming the Superior Court’s ruling.

All constitutional issues and arguments raised in this appeal for a writ of certiorari were either raised in timely fashion at the Sixth District Court of Appeal, or challenge arguments made by the Sixth District in its ruling. Plaintiff’s tardiest argument was his guarantee clause argument, which had not been made at all in his Superior Court brief and which was not fully developed in his Sixth District Opening Brief. After the Respondent’s Brief included a copy of the legislative record, which revealed the legislature’s express intent to prevent the people from actually electing candidates without law enforcement background, this overt attack on the principle of voter sovereignty prompted the plaintiff to devote much of his Reply Brief to a full statement of the guarantee clause argument. Respondent’s attorney had a chance to answer this argument during oral argument, and did do so.

After the Sixth District affirmed the Superior Court ruling, the plaintiff appealed for an en banc rehearing with the Sixth District and was denied. He then appealed for California Supreme Court review and was denied. Judgment was stamped final by the Clerk of the Sixth District Court of Appeal on June 30th, 2003.

It might also be relevant that the present suit is not the only suit on this matter currently before the courts. A write-in candidate in Utah who actually won a majority of the vote was denied office by a law similar to California’s. (The case is that of Don E. Torgerson v. Bart Albrecht, Sandra Rees, and Wayne County Commission, heard in The Sixth Judicial District Court, Wayne County Utah, case # 020600034, hearing date January 17th, 2003. Finding that election officials had been wrong to count Mr. Albrecht’s votes, given that he did not meet the statutory requirement for office, the Utah court ordered that the office be awarded to Mr. Torgerson instead.[2] The status of appeals in this case is unknown to the plaintiff.) Georgia also has a similar law. Whether any other states have similar laws is unknown to the plaintiff.



Reasons for Granting the Petition


I    The argument on First and Fourteenth Amendment grounds:

Limiting candidacy to members of the law enforcement establishment does grave discriminatory harm to the plaintiff’s First and Fourteenth Amendment political rights that is not justified by any legitimate state interest.


I.  A.   The proper criterion of election law harm is discrimination against some class of serious candidates. The proper test for whether such harm is justified is the Anderson balancing test.


In Williams v. Rhodes, 393 U.S. 23, 30 (1969), the Court recognized “two different, although overlapping kinds of rights” that are impinged upon by candidate restrictions: “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."[3]

Noting that “fair and honest” elections require “substantial regulation” the Court in Anderson v. Celebrezze, 460 U.S. 780, 788 (1982) opined that “the state’s important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions.” One of these regulatory interests is to keep out “frivolous” candidates who would “encumber the ballot.” (Anderson, at footnote 9, p. 788.)  By the same token, one criterion of harmful discrimination is discrimination against “serious” candidates, defined either in terms of how seriously a candidate takes his own candidacy, Bullock v. Carter, U.S. 405 134, 146 (1971), or in terms of “the extent of his political support,” Lubin v. Panish, 415 U.S. 709, 714 (1973).

When harms are present, the Anderson balancing test calls for the court to weigh the “character and magnitude” of harms to First and Fourteenth Amendment rights against the “legitimacy and strength” of state interests, taking into account “the extent to which those interests make it necessary to burden the plaintiff’s rights.” Anderson, at 789.

The ruling by California’s Sixth District Court of Appeal agrees with the plaintiff’s position on all of these points. (Ruling, pp. 3-6.)[4] Plaintiff’s disagreement with the Sixth District’s ruling comes in the actual application of the Anderson balancing test.


I.  B.    Limiting races for sheriff to members of the law enforcement establishment does grave discriminatory harm to serious candidates, including the plaintiff.

By requiring candidates to have extensive recent law enforcement experience, California Elections Code §13.5 and California Government Code §24004.3 have the effect of requiring that candidates be members of the incumbent government establishment itself. Thus the question arises whether the distinction between the governors and the governed is politically important, either in substance or in principle?  

At the principled or abstract level, the governors are composed of the incumbents together with their subordinates. To the extent that there are political differences in society over law enforcement policy, the incumbents represent what had been the majority in previous elections. As the incumbent power, they will have been in a position to suppress the careers of any members of the law enforcement community who actively pursue opposition politics, both before and after these would-be opponents make a run for office. If the only admissible qualification for candidacy is a person’s law enforcement career, then incumbents will be in a position to severely handicap, and/or retaliate against all qualified candidates who actively pursue opposition politics.

This is exactly what Laurie Smith, the incumbent Sheriff of Santa Clara County, has done. As noted in Plaintiff’s Sixth District Opening Brief (p.28), Laurie Smith systematically destroyed the careers of both candidates who have run against her, firing one and busting the other down three ranks, chopping his salary in half. [5] As a result, she now runs unopposed, sitting like a third world dictator on the strength of her proven willingness and ability (thanks to the challenged candidate restriction) to destroy all who oppose her.[6]

Turning to substance, the distinction between the governors and the governed manifests in sheriffs races as the gulf between the civilian and law-enforcement sides of the civilian/law-enforcement relationship. Given that elections for sheriff are largely about the proper relationship between law-enforcement and the civilian population, civilian views of that relationship are prima facie one of the main viewpoints to be represented in elections for sheriff.

To example the political substance of the civilian/law-enforcement divide, plaintiff noted in his Sixth District Opening Brief (pp. 25-27) that an electoral revolution has been sweeping the nation over the last twenty years, with the people of over half the states stripping their sheriffs and police chiefs of all discretionary power to deny gun permits.[7] This indicates a powerful divide between civilian and law-enforcement-establishment views on at least this one subject, with the non-establishment view proving to be the majority view in almost every instance.

The Sixth District rejected both substantive and principled concerns, holding simply that the attempted distinction between law enforcement and civilian views is mere “amorphous political rhetoric.” (Ruling, at p. 6.) But this holding itself is simply a rhetorical denial that political discrimination is a concern. What is the difference between Democrats and Republicans except their different political rhetoric, and the substantive political differences that that rhetoric describes? Faced with unprecedented extremity of discrimination against serious candidates, both in substance and in principle, the Sixth District simply refuses to witness it. In this the Sixth District is utterly at odds with the instructions laid out by the Court in Anderson v. Celebreeze, demanding that harms be fully evaluated and weighed. If the present degree of political discrimination—limiting the ballot to members of the government itself—can be dismissed as having no weight at all, then the Anderson balancing test has become meaningless and no longer poses any barrier to any kind of candidate restriction.

Just on the abstract point, consider what the founder’s had to say about the relation between the governor’s and the governed. First, 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, paragraph 4: “…you must first enable the government to control the governed; and in the next place oblige it to control itself.”  To oblige the government to control itself, the author (who might have been 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. If discrimination on this line does not weigh then nothing does.

Note too the logical connection between the particular substantive discrimination alleged 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.” (At. PP 13.) Those who have power naturally strive for a monopoly of power. The law enforcement establishment evidences this disposition, first through its banning of electoral competition from outside of law enforcement, second by the record of abuse of that power by incumbent sheriffs to destroy the careers of subordinates who challenge them electorally, and third through its tendency to seek a monopoly of arms, creating the 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 also 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. Refusal to witness these political divides, or to weigh the discrimination that results when one side of these divides is banned from candidacy, flouts the Court’s instructions and, if allowed, annihilates election law precedent.


A second question, in evaluating discriminatory harms, is whether the challenged restriction actually imposes unequal burdens on civilian viewpoints (separate from the question of whether the distinction between civilian and law-enforcement views is politically important). Here the Sixth District denies that limiting candidacy to members of the law-enforcement establishment poses any barrier at all to civilian viewpoints. Firstly (at p. 6) it describes the restriction as “even-handed, it is applicable to all candidates.” Secondly (id.) it notes that the plaintiff himself admits that “it is possible for members of law enforcement to share the civilian tendency to be in favor of gun rights.”

The plaintiff had already shown both of these positions to be clearly untenable. First, the fact that anyone can gain law-enforcement background does not make the requirement non-discriminatory. If a candidate is already a serious candidate (has a real chance to win) without the benefit of law enforcement background, then having to spend several years gaining that background in order to qualify for the ballot is an extreme unequal burden, compared to serious candidates from within law enforcement, who do not have to do anything additional to qualify for the ballot.[8]

The Sixth District’s position only holds up if the state is seen as having the power to define who is a serious candidate, not in terms of whether they have a chance to win an election, but in terms of whether they meet the statutory requirements. But “seriousness” is a constitutional term, defined by the Supreme Court to refer to a candidate’s prospects for electoral support. [9] Allowing a state to define who is and is not a serious candidate would violate both the principle of voter sovereignty and established election law precedent.

As for the idea that civilian views can be represented by members of law-enforcement, plaintiff had contended in his briefs and in oral argument that if there are on average some systematic differences between civilian and law enforcement views, then the mere presence of some overlap between views held by members of these different groups does not make it non-discriminatory to ban one or the other of these groups from candidacy. If it did, then the presence of overlap between views held by Democrats and Republicans would make it non-discriminatory to ban one of these groups from candidacy. We can find Democrats who are pro-gun too, but that would not keep the banning of Republicans from being highly discriminatory on the gun-rights issue.

Note on this point that the in Bullock v. Carter, the Court struck down modest filing fees on the grounds that they discriminate against the indigent. By the Sixth District’s reasoning, the indigent could simply seek representation from wealthier candidates who are concerned about the indigent, as many non-indigent candidates often are. But the Court allowed no such thing. By this benchmark, the requirement that candidates for sheriff be members of law enforcement is far more discriminatory. Where the indigent are a small minority who would be able to seek representation amongst the great majority, civilians are the great majority, yet are forced to seek representation from amongst a tiny minority.

Further, while it is easy to demonstrate that many wealthy people do take up the special concerns of the indigent with great enthusiasm, many times dedicating great fortunes to this cause, there are systematic reasons why those within the law enforcement establishment who do have non-establishment viewpoints will be greatly hampered in any quest for the office of sheriff. They must establish their leadership credentials within the law enforcement establishment, where the incumbent sheriffs are in a position to suppress the careers of those who hold competing views.

The Sixth District’s ruling is at odds with all of this logic and precedent. Again, it simply refuses to conduct a logical accounting of the interests at stake, in violation of Court instructions.


I. C.     The state’s interests in limiting candidacy to members of the law enforcement establishment are weak and/or illegitimate.

The other side of the Anderson balancing test is the “legitimacy and strength” of the state interests that are served by the challenged restriction, Anderson (supra) at 789. The Court in Anderson was quite clear that the only legitimate state interests in election law cases are interests in facilitating the accurate expression of the will of the voters, or what the Court in Anderson called “fair and honest” elections (at 788).

In Anderson’s footnote 9 (at p. 788), the Court conducted a survey of recognized state interests in election law cases. All can be seen to serve what the footnote calls “the integrity and reliability of the electoral process itself.” The list is short. One thing the states can require, in pursuit of these “First Amendment values,” is that candidates make a substantial showing of preliminary support, in order to avoid encumbering the ballot with “frivolous candidates.” They can also ban activities that distort the election process, such as “party raiding” (switching parties in order 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 the “First Amendment values” of furthering “the integrity and reliability of the election process itself.” That was in Clements v Fashing,  457, U.S. 957 (1982), where the Court upheld a ban on holding two offices at once. But such a ban could easily be interpreted as facilitating the 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. In particular, the Court has never recognized any state interest in telling the people what they must choose.


I. C. i.   Legitimate state interests are weak: the restriction fails to target frivolous candidates more than serious candidates.

On the legitimate purpose of weeding out more frivolous than serious candidates, the challenged restriction is a spectacular failure. For instance, the Sixth District notes that the job of sheriff calls for a high level of administrative ability. The presumption is that most serious candidates will have high level administrative experience. But only a tiny handful of people within law enforcement ever attain a high level of administrative experience. The great reservoir of people with administrative experience are in the private sphere or other arms of government. Thus by this criterion, almost all would-be serious candidates are barred!

Similarly for people with deep policy understanding of law enforcement issues, or detailed understanding of the law. Most criminologists are barred. Activists are barred. District attorneys are barred. Lawyers are barred. Governor’s and mayors are barred. Again, the great majority of people with profound understanding of law enforcement issues are barred. Of course a lot of frivolous candidates are barred too. Almost everyone is barred. The point is that the restriction is not efficient about leaving serious candidates unmolested.

Further, the necessity criterion is not met. If the concern is that the people would mistakenly elect someone from outside of law enforcement, a perfectly adequate remedy would be to require that lack of law enforcement background be stated explicitly on the ballot, along with the occupational background information that now accompanies candidate names on California ballots.

Alto pertinent to the necessity criterion, the Court in Williams v. Rhodes (supra) 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 most of the rest of the nation, with no apparent untoward effect.[10] In California, San Francisco sheriff Michael Hennessey, who was elected without law-enforcement experience eight years before the restriction was passed, and has now gone on to become California’s longest serving sheriff.[11]  As in Williams, fixing what is not broken cannot be a justification for imposing grave First Amendment harms.

Again, this logic and precedent was all listed in the plaintiff’s Sixth District Opening and Reply briefs. The spurning of this logic and precedent by the Sixth District again sets the Sixth District’s ruling at odds with the Supreme Court’s instructions in Anderson and the benchmarks it has set in other cases.


I.  C.  ii.     Striking down the challenged restriction would not imply that other candidate restrictions must also be stricken.

If the challenged restriction is stricken as unconstitutional, what would the implications be? Would the consequences be limited and manageable, or would all kinds of other candidate restrictions also have to be stricken? The implications should be quite limited. Most obviously, no other candidate restriction limits candidacy to members of the government itself. Other considerations are also moderating.

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 cannot be excluded completely, but if there is no competing school of thought from outside of the CPA establishment that has a political constituency, then exclusion of the rare serious candidate who lacks a CPA can be justified by the much greater tendency to exclude frivolous candidates.

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 relationship to be represented on the ballot excludes a main contending viewpoint.

An analogous office is District Attorney, where there is also wide discretionary power to set law enforcement priorities and set the terms of the civilian/law-enforcement relationship. At present candidates for District Attorney must be members of the bar, but they do not have to be members of the government itself, as candidates for sheriff do. The analogous restriction for District Attorney’s would be to require that candidates be current or recent members of the prosecutor’s office. As with the sheriff restriction, one of the main contending views, that of the defense, would be barred from the ballot, while all the principled problems of limiting candidacy to members of the government itself would arise. (Who could overturn the establishment when all challengers must establish their careers within the establishment?)

Requiring District Attorneys to be from the prosecutors office would obviously be unconstitutional, for the same reasons limiting candidates for sheriff to members of the law enforcement is unconstitutional. Striking down requirements that candidates be members of the government itself would carry no implication that much lesser restrictions, like requiring that candidates for District Attorney be members of the bar, must also be stricken.


I. C. iii.   Express intent to bar would-be winning candidates is an illegitimate state purpose.

The law requiring candidates for sheriff to have law enforcement background was sponsored by the California Sheriffs’ Association. The Association’s entire reasoning, as entered into the legislative record on March 10 1987, was very simple:

The California State Sheriff’s Association is very interested in making certain that people who are elected to the office of sheriff are professionally qualified for that position. For this reason, CSSA is sponsoring legislation to achieve that goal.[12]


This reasoning is elaborated in later filings, but entirely in the same vein. The concern is to make sure that the people do not elect someone from outside of law enforcement. This is stated even more clearly in the legislative assessment. A nod is given to the issue of ballot clutter with the observation that several candidates without law enforcement background had recently appeared on the ballot, but the assessment clearly asserts that the danger presented is that these candidates might actually be elected:

If these same individuals had been elected they would either not be qualified to hold the office or were of such questionable background and stature that if placed in these critical positions they could have had a long range, negative impact on the administration of justice.[13]


Three examples are given. One is actually an example of too little ballot clutter. When a candidate died, so many people had been kept off the ballot by the large filing fee that there were no other candidates from within law enforcement on the ballot. Second is an example of a felon who could not have assumed office even if he did win. (How is that relevant?)  And the last example is an actual challenger, someone who disagreed with the incumbent and had been fired for insubordination. No mention at all is made in the legislative analysis of those candidates without law enforcement background who have won, like the aforementioned Sheriff Hennessey of San Francisco.

The clear appeal is to a state interest, not in bringing forth the accurate expression of the will of the voters, but in directly limiting what the people are allowed to choose, and in most audacious fashion: NO CIVILIAN VIEWPOINTS ALLOWED!

Precedent on this point is absolutely clear. This is not a legitimate state interest. The rationale for allowing substantial regulation of the election process is to create “fair and honest” elections. Anderson (supra) at 788. State powers are to be used to set up a process that winnows out those candidates who would not win. Burdick (supra) at 438. It is illegitimate to do the opposite and set up a process that eliminates a class of candidates in order to keep them from winning. Anderson’s comprehensive survey of state election law interests (at footnote 9) recognizes no state interests in anything but creating an election process that serves the political rights of the voters to have elections that express their will. If there is an intent to weed out candidates, it can only be an intent to weed out frivolous candidates. It cannot be an attempt to weed out winning candidates. That is not “fair and honest.” That is cheating.

An express intent to bar would-be winning candidates is a declaration of unconstitutional discrimination. In the present case, this declaration appears right in the legislative record. The plaintiff had very clearly pointed out and condemned this illicit state purpose in his Sixth District Reply Brief and in oral argument, but the Sixth District’s ruling does not even mention it, again flouting the Court’s clear instruction to weigh “the legitimacy and strength” of proclaimed state interests. Anderson, at 789.


I.  C.  iv.     The Gregory line of precedent does not recognize any state power to discriminate politically within the polity

While Sixth District does not take note of the legislative intent to ban winning candidates, it does appear to recognize a state interest in telling the people what qualifications they must favor. Its ruling (at p. 7) cites Gregory v. Ashcroft, 501 U.S. 452, 463 (1991) 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.”

This is a gross misapplication of Gregory. The referenced portion of Gregory is a paraphrase of pre-Civil-War state powers, which the Gregory opinion traces back to Luther v. Borden, 7 How. 1, 41 (1849).[14] Recognizing the lineage of these powers, Gregory holds that they remain unchecked by the Equal Protection Clause only “where we deal with matters resting firmly within a State’s constitutional prerogatives.” Gregory, at 462.   i.e. They are to be invoked only where Fourteenth Amendment protections are clearly not at issue. The Sixth District violates this instruction by invoking these powers in a First and Fourteenth Amendment rights case, without citing how these powers are checked by the Fourteenth Amendment.

Gregory is vulnerable to this kind of misuse because it sits right on the boundary of employment law and election law. (Gregory was an age discrimination employment lawsuit that happened to touch on election law because some of the affected officeholders were appointed judges, who after a term were subject to periodic up or down votes by the people.) The embrace of pre-Civil-War state powers comes from a line of employment law precedent where no First and Fourteenth Amendment election law issues were present. Gregory thus creates an opportunity to take this employment law precedent and assert it over election law precedent in election law cases. All a court has to be willing to do is ignore, as the Sixth District has, how the Court in Gregory saw these pre-Civil-War state powers as checked by the Fourteenth Amendment.

Thanks to the Sixth Districts’ ruling in this case, it is now a matter of standing precedent in California that pre-Civil-War state powers drawn from employment law precedent trump election law precedent in election law cases. If this ruling is allowed to stand, California will have succeeded in freeing itself from the Fourteenth Amendment, and other states are bound to quickly follow suit. These are serious charges, so they will be documented in detail. The key is to examine the Gregory’s citation of pre-Civil-War powers (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”) and see how this citation is misused in the Sixth District’s ruling.

Broad reference to pre-Civil-War state powers was acceptable in Gregory because, as an age discrimination suit, Gregory did not involve any issue of discrimination between political viewpoints, which would be barred by the Fourteenth Amendment. Thus in substance, it was really a pure employment discrimination case. To make its ruling, the Court in Gregory adverted to a line of employment law precedent that established legitimate state powers to bar aliens from positions “intimately related to the process of democratic self-government.” Gregory at 462, quoting 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 could 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.)


It then continues:


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, not discriminate within the polity, which would create a Fourteenth Amendment harm.

This theme is verified again if one traces Gregory’s citations about where broad state powers are and are not checked by equal protection. For the meaning of “firmly within a state’s constitutional prerogatives,” Gregory (at 462) cites Sugarman v. Dougall, 413 U.S. 634, 648 (1973). 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. This clarifies 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. The Sixth District, in contrast, turns around and uses pre-Civil-War powers to justify what is under the First and Fourteenth Amendment’s a clearly illegitimate state interest: barring candidates on the grounds that they might win. If the Sixth District’s embrace of unchecked pre-Civil-War state powers are allowed to stand, grevious harm will have been done, not just to the plaintiff, but to the Constitution.


I.  C.  v.     A state interest in sheriff’s having law enforcement background does not create a state interest in limiting the ballot to those who have law enforcement background.

The difference between employment law and election law is not the only important distinction that is easy to elide. Another critical distinction is between state election law interests and general state interests. In the introduction to section I.C., it was documented that the only state election-law interests ever recognized by the Court were all interests in facilitating the accurate expression of the will of the voters. In other areas, outside of election law, there are, of course, a whole range of legitimate state interests. For instance, there are general state interests in having effective crime control, and it is certainly possible that having sheriffs with law-enforcement background can contribute to the effective pursuit of this legitimate state interest.

It might seem, on this grounds, that significant discrimination against serious candidates could be justified. Might not the state’s interest in effective crime control even constitute a “compelling state interest” sufficient to clear the traditional “strict scrutiny” hurdle for justifying discrimination? Such an argument is perhaps implied by the Sixth District where it opines (at p. 7):

There can be no doubt that the state has a strong interest in assuring that a person with aspirations to hold office is qualified to administer the complexities of that office.


But a general state interest cannot translate into an election law interest in this way, and the reason goes to the heart of the difference between election law and other kinds of law.

A state interest in sheriffs having law-enforcement background, and a state interest in limiting the ballot to candidates who have law enforcement background, are two very different things. Outside of election law, there are many different legitimate state interests. The nature of the election process is to choose between candidates who prioritize those different legitimate state interests in different ways.

Thus the plaintiff concedes that there is indeed a compelling state interest in effective crime control, and that this creates a state interest in sheriffs having law-enforcement background, even a compelling state interest. By the same token, insists that there are also compelling state interests in having sheriffs who represent the civilian side of the civilian/law-enforcement relationship. Indeed, there are compelling state interests in having civilian sheriffs pursuant to the goal of effective crime control. Civilian understanding of the efficacy of gun rights for reducing crime is way out ahead of law enforcement understanding on this issue.

Each side has its own compelling case, based on service to legitimate state interests. The role of elections is to choose between these competing compelling state interests. In no case does the presence of compelling state interests on one side justify limiting the ballot to candidates who represent that interest. There are compelling state interests in having a dove for President. There are compelling state interests in having a hawk for President. Neither of these state interests creates a state interest in limiting the ballot to either hawks or doves. The whole purpose of democracy is to allow the people to choose between such competing compelling state interests.

Election law precedent recognizes this through its criterion of non-discrimination, which refers first and foremost to discrimination amongst political views. The purpose of restrictions cannot be to tell the people what state interests they must give priority to through the election process, or our democracy has been usurped. That is why the only recognized election law interests are in facilitating the accurate expression of the will of the voters. The Sixth District does not grasp this, making it crucial for the preservation of our democracy that the Sixth District’s ruling be overturned.


II.   The guarantee clause argument: 

Limiting candidacy to members of the government itself, and having the express intent to ban would-be winning voters, both attack the principle of voter sovereignty so directly as to constitute a violation of the Article IV section 4 guarantee to the states that they shall have a republican form of government.


Because no guarantee clause claim has ever been upheld, this grounds for suit is listed last. It is, however, as fully conclusive as the first, and provides a strong additional constitutional grounds for ruling in the plaintiff’s favor.

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 Supreme Court has recognizes 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.[15] As noted at the beginning of section I.C. of this Petition, the principle of voter sovereignty is also the essence of election law precedent. The only recognized state interests are in facilitating voter sovereignty by creating “fair and honest” elections that accurately represent the will of the voters.

Thus all of the preceding arguments, demonstrating how the challenged candidate violates election law precedents, are demonstations of the violation of voter sovereignty. What is unique about the present case is that the assaults on the fundamental republican principle of voter sovereignty are so direct that the various hurdles to earlier guarantee clause cases are all overcome. Where the assaults charged in earlier guarantee clause suits were all ambiguous at some point, sinking guarantee clause claims, no ambiguities exist in the current case.

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 proceed from the challenged process. Overturning the results of an allegedly unrepublican process 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.[16] 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 rather than individuals, violates the principle of equal voting power for 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 the suit raised political questions, which the district court then claimed had been declared non-justiciable by the Court’s guarantee clause precedents. Justice Brennan did wonderful work in dispensing with that theory. The only hurdle that Brennan left to a successful guarantee clause suit is his seemingly sweeping denial that any such result is possible.

In commenting on the possibility of a guarantee clause suit, Brennan penned the somewhat cryptic conclusion that, “as we have seen, any reliance on [the guarantee clause] would be futile.” (At p.227.) But where had this been seen? It takes a very careful reading of the case to discover that Brennan is apparently referring to his footnote 48 (at p.222). In this footnote, Brennan actually denies that manageable standards for adjudicating the guarantee clause are impossible. Indeed, he cites Luther’s holding (at p.45) that a military government would have to be overthrown as unrepublican.

Continuing the analysis, Brennan acknowledges that it might not just be for the political branches of government to pursue such an undertaking, but 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.” (Footnote 48 still.) The negative conclusion about a guarantee clause claim comes only because Brennan then goes on to speculate that if manageable standards were discovered,  separation of powers problems would likely arise: “there would remain other possible barriers to decision because of primary commitment to another branch, which would have to be considered in the particular fact setting presented.” (Id.)

Thus upon close inspection, we Brennan has not showed us that a guarantee clause suit must be futile. After demonstrating that neither kind of “political question problem” is by itself unavoidable, he simply supposed that when manageable standards problems do not exist, separation of powers problems will. This presumption is contradicted by the current case. Manageable standards are imported from election law precedent, yet there are clearly no separation of powers problems, since the plaintiff is only suing to overturn an unrepublican process, not any election results or enactments that have proceeded under that process.

This brings us to the great principle of constitutional interpretation, articulated 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. [5  U.S.  137, 174 (1803).]


 Since none of the obstacles that have prevented guarantee clause suits from being adjudicated in the past are existent in the present case, it is inadmissible in the present case to continue to consider the guarantee clause to be nonjusticiable. The words no longer require it. For over two hundred years an entire section of the Constitution has stood mute. It is now ready to speak.





The petition for a writ of certiorari should be granted


                        Respectfully submitted,




                        Date:   ________________________



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[1]   Specific combinations of education and years of experience are listed in the Sixth District’s opinion, Appendix A, at p. 2.

[2]   See The Sierra Times, “Real American Sheriff-Elect Needs Help,” 1/24/03, Appendix G.

[3]   The Court in Williams located these rights under the First Amendment, then found them to be protected by the Fourteenth Amendment, then held that, where “unequal burdens” were placed on these rights, such burdens must be justified by “a compelling state interest” (at pp. 30-31).

[4]   The ruling of California’s Sixth District Court of Appeals is attached as Appendix A. On the Sixth District’s acknowledgment of the criterion of discrimination against serious candidates (meaning candidates who might gain substantial electoral support), this is implied the Sixth District’s citation from Burdick v. Takushi, 504 U.S. 428, 438 (1992), that “the function of the election process is ‘to winnow out and finally reject all but the chosen candidates.’”  Burdick was here citing Storer v. Brown, 415 U.S. 724, 735 (1974).

[5]     See "To the Victor go the Spoils," San Jose Mercury News, 12/13/98, in Appendix G.

[6]     See "Incumbents in Santa Clara County find few challengers lining up to race," San Jose Mercury News, 12/16/01, in Appendix G.

[7]   For an account of the sequence of "shall issue" victories, and of the efficacy of "shall issue" laws, plaintiff’s Opening Brief at this point cited John Lott's book More Guns Less Crime, University of Chicago Press, 1998/2000.

[8]   This analysis was contained in the plaintiff’s Sixth District Reply Brief, at pp 8-10.

[9]   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.” As noted in section I.A., the alternative formulation is that seriousness refers to how seriously a candidate takes his own candidacy, Bullock v. Carter, U.S. 405 134, 146 (1971). This also is a judicially defined constitutional interpretation, not subject to legislative redefinition that overturns the constitutional principles involved.  

[10]   Plaintiff understands that California’s was the first such law. Georgia and Utah have followed suit. Whether any others yet have is unknown to the plaintiff.

[11]    See Salon article, Appendix G.

[12]   This filing from the Sheriffs’ Association, and other cited portions of the legislative record, are attached as Appendix F.

[13]   Appendix F.

[14]   The sentence on page 463 of Gregory that is cited by the Sixth District 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.

[15]   Both cite 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).")

[16]    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.